united states district court eastern district of …. v. michigan/plaintiffs_opposition_to...act...

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

D.R., as a minor through parent and next friend Dawn Richardson, A.K., as a minor through parent and next friend, Angy Keelin, C.D.M., as a minor through parent and next friend Crystal McCadden, C.M., as a minor through parent and next friend Crystal McCadden, J.T., as a minor through parent and next friend Nakiya Wakes, N.S, as a minor through parent and next friend Nakiya Wakes, J.W., as a minor through parent and next friend Kathy Wright, C.D., as a minor through parent and next friend Twanda Davis, D.K. as a minor through parent and next friend Rachel Kirksey, M.K. as a minor through parent and next friend Rachel Kirksey, O.N., as a minor through parent and next friend Manita Davis, D.T. as a minor through parent and next friend Manita Davis, D.D. as a minor through parent and next friend Willie Daniels, C.W. as a minor through parent and next friend Chandrika Walker, J.B. as a minor through parent and next friend Jeree Brown, individually and on behalf of all similarly situated persons,

Plaintiffs,

v.

Michigan Department of Education,

Genesee Intermediate School District, Flint

Community Schools, Defendants.

/

No. 16-CV-13694-AJT-APP

Hon. Arthur J. Tarnow

PLAINTIFFS’

OPPOSITION TO

DEFENDANTS’

MOTIONS TO DISMISS

AND MOTION FOR

JUDGMENT ON THE

PLEADINGS

Kary L. Moss (P49759)

Kristin L. Totten (P72942)

Daniel S. Korobkin (P72842)

Michael J. Steinberg (P43085)

ACLU Fund of Michigan

2966 Woodward Ave.

Detroit, MI 48201

Timothy J. Haynes (P41196)

Travis M. Comstock (P72025)

Katherine J. Bennett (P75913)

Attorneys for Defendant Michigan

Department of Education Michigan

Department of Attorney General

Health, Education & Family Services

2:16-cv-13694-AJT-APP Doc # 29 Filed 01/13/17 Pg 1 of 81 Pg ID 896

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(313) 578-6800

[email protected]

[email protected]

[email protected]

[email protected]

Gregory M. Starner

Lindsay M. Heck

Walter A. Ciacci

Dominique N. Forrest

Laura A. Grai

White & Case LLP

1155 Avenue of the Americas

New York, NY 10036-2787

(212) 819-8200

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

David G. Sciarra

Gregory G. Little

Jessica A. Levin

Education Law Center

60 Park Place, Suite 300

Newark, NJ 07102

(973) 624-1815

[email protected]

[email protected]

[email protected]

Counsel for Plaintiffs

/

Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

[email protected]

[email protected]

[email protected]

Timothy J. Mullins (P28021)

John L. Miller (P71913)

Giarmarco, Mullins & Horton, P.C.

Attorneys for Defendant Genesee

Intermediate School District

101 W. Big Beaver Road, 10th

Floor

Troy, MI 48084-5280

(248) 457-7020

[email protected]

Donald B. Miller (P23419)

Frederick A. Berg, Jr. (P38002)

James S. Rosenfeld (P39434)

Brett J. Miller (P68612)

Michael Griffie (P79836)

Hannah Treppa (P80978)

Butzel Long, a professional corporation

Attorneys for Defendant Flint

Community Schools

150 W. Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7020

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]


3

PLAINTIFFS’ BRIEF IN SUPPORT OF OPPOSITION TO DEFENDANTS’

MOTIONS TO DISMISS AND MOTION FOR JUDGMENT ON THE

PLEADINGS

Plaintiffs respectively ask that this Court deny the motions to dismiss of

Defendant Michigan Department of Education (MDE) and Defendant Flint

Community School District (FCS) and the motion for judgment on the pleadings of

Genesee Intermediate School District (GISD). Plaintiffs state in support:

1. Plaintiffs seek declaratory and injunctive relief to order Defendants’

compliance with their obligations under the Individuals with Disabilities Education

Act (IDEA), 20 U.S.C. § 1400 et seq., § 504 of the Rehabilitation Act of 1973

(“Section 504”), 29 U.S.C. § 794, Title II of the Americans with Disabilities Act

(Title II), 42 U.S.C. § 12131 et seq., and Michigan law. Each of the Defendants has

failed in its obligations to the Plaintiff class, and these failures have only been

amplified by the lead crisis.

2. Count I of the Complaint sets forth four systemic violations under the

IDEA by each Defendant. All Defendants have failed to develop and implement

appropriate child find procedures, have failed to provide a free appropriate public

education in the least restrictive environment, have failed to protect students’ due

process procedural safeguards in the disciplinary process, and have discriminated

on the basis of disability and unjustly denied Plaintiffs’ access to educational

services. (Dkt. No. 1; Compl. at ¶¶ 349 – 384).


4

3. Count II alleges that all Defendants have discriminated against

Plaintiffs based on disability in violation of the Rehabilitation Act, 29 U.S.C. § 794

et seq. (Compl. at ¶¶ 385 – 388). Plaintiffs have impermissibly been denied access

to essential services and programming that is available to non-disabled students

solely on the basis of their disabilities.

4. Count III states that all Defendants have exercised gross misjudgment

and discriminated against Plaintiffs and similarly situated children in violation of

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. by

denying them access to essential services and programming that is available to

non-disabled students solely on account of their disabilities and/or behaviors

related to those disabilities. (Compl. at ¶¶ 389 – 391).

5. Count IV alleges that Defendants FCS and GISD have violated

Michigan law by failing to provide a free and appropriate public education and by

not providing each child with programs and services designed to develop his or her

maximum potential. (Compl. at ¶¶ 392 – 394).

6. Defendants’ motions to dismiss and motion for judgment on the

pleadings should be denied because Plaintiffs have alleged multiple causes of

action with sufficient detail to satisfy the pleading standards at this early stage of

the proceedings. Defendants primarily argue that Plaintiffs are required to exhaust

all administrative remedies before they bring suit, that Plaintiffs lack standing, and


5

that Plaintiffs have failed to state a claim. Each of these arguments fail, as

exhaustion is not required, Plaintiffs have standing, and the Complaint alleges

sufficient facts that, taken together, give rise to a plausible inference that

Defendants are liable for the misconduct alleged.

7. Exhaustion is not required when it would be futile to exhaust. Such

futility exists when a plaintiff alleges systemic violations that cannot be resolved

through the administrative process. As described previously, Plaintiffs have alleged

systemic violations, none of which can be adequately resolved through the

administrative process. Each requires system-wide reforms by Defendants, and

individual resolution of claims would be cost prohibitive, slow, and ultimately

ineffective to redress Plaintiffs’ claims.

8. Exhaustion is also not required when an emergency situation exists.

The lead disaster and its fallout constitute an ongoing crisis, the effects of which

may not be fully realized for years to come. Immediate relief is required, and

exhaustion of administrative remedies cannot provide the swift and comprehensive

relief to which Plaintiffs are entitled.

9. Plaintiffs have standing to bring their Complaint. MDE has specific

and direct responsibility to ensure the provision of special education services in the

State of Michigan and compliance by local educational entities such as FCS and

GISD with special education and anti-discrimination law. Its failure to fulfill this


6

role violates Plaintiffs’ rights under the IDEA, Section 504, and the ADA. Further,

each of the three elements of standing is satisfied in the Complaint: Plaintiffs

allege injury under federal special education and anti-discrimination statutes,

Plaintiffs’ injuries are fairly traceable to the MDE, and Plaintiffs’ injuries are

capable of redress through judicial relief. Contrary to FCS's contention, Plaintiffs

have standing to sue for all requested relief, including appropriate screenings.

10. The Eleventh Amendment poses no hurdle for Plaintiffs’ claims

against MDE because Title II of the ADA validly abrogates state sovereign

immunity.

11. Plaintiffs have stated a claim upon which relief can be granted under

the Iqbal-Twombly standard. Plaintiffs’ IDEA claims are properly pled, as

Plaintiffs describe the specific ways in which all Defendants have failed to comply

with the IDEA. Plaintiffs also provide detailed allegations specific to each Plaintiff

that illustrate how the failures of all Defendants have harmed students on a daily

basis. Plaintiffs, in alleging both discriminatory intent and discriminatory effect,

have also properly pled their Title II ADA and Section 504 claims.

12. Contrary to Defendant GISD’s argument, Plaintiffs have not made a

claim for “educational malpractice.” GISD has mischaracterized Plaintiffs’ state-

law claims, citing an inapposite doctrine against negligence. Since Plaintiffs have

not brought a separate negligence cause of action and are seeking only declarative


7

and injunctive relief, Plaintiffs’ state-law claim survives.

WHEREFORE, for the reasons set forth more fully in the attached Brief,

Plaintiffs ask that this court deny Defendants’ Motions to Dismiss and Motion for

Judgment on the Pleadings.

Respectfully submitted,

By: /s/ Daniel S. Korobkin

Kary L. Moss (P49759) Gregory M. Starner

Kristin L. Totten (P72942) Lindsay M. Heck

Daniel S. Korobkin (P72842) Walter A. Ciacci

Michael J. Steinberg (P43085) Dominique N. Forrest

ACLU Fund of Michigan Laura A. Grai

2966 Woodward Ave. 1155 Avenue of the Americas

Detroit, MI 48201 New York, NY 10036-2787

(313) 578-6800 (212) 819-8200

[email protected] [email protected]




[email protected]

David G. Sciarra

Gregory G. Little

Jessica A. Levin



Newark, NJ 07102 Counsel for Plaintiffs

(973) 624-1815

[email protected]

[email protected]

[email protected]

Dated: January 13, 2017


1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

D.R., as a minor through parent and next friend Dawn Richardson, A.K., as a minor through parent and next friend, Angy Keelin, C.D.M., as a minor through parent and next friend Crystal McCadden, C.M., as a minor through parent and next friend Crystal McCadden, J.T., as a minor through parent and next friend Nakiya Wakes, N.S, as a minor through parent and next friend Nakiya Wakes, J.W., as a minor through parent and next friend Kathy Wright, C.D., as a minor through parent and next friend Twanda Davis, D.K. as a minor through parent and next friend Rachel Kirksey, M.K. as a minor through parent and next friend Rachel Kirksey, O.N., as a minor through parent and next friend Manita Davis, D.T. as a minor through parent and next friend Manita Davis, D.D. as a minor through parent and next friend Willie Daniels, C.W. as a minor through parent and next friend Chandrika Walker, J.B. as a minor through parent and next friend Jeree Brown, individually and on behalf of all similarly situated persons,

Plaintiffs,

v.

Michigan Department of Education,

Genesee Intermediate School District, Flint

Community Schools, Defendants.

/

No. 16-CV-13694-AJT-APP

Hon. Arthur J. Tarnow

PLAINTIFFS’ BRIEF IN

SUPPORT OF

OPPOSITION TO

DEFENDANTS’

MOTIONS TO DISMISS

AND MOTION FOR

JUDGMENT ON THE

PLEADINGS

Kary L. Moss (P49759)

Kristin L. Totten (P72942)


Michael J. Steinberg (P43085)


2966 Woodward Ave.

Detroit, MI 48201

Timothy J. Haynes (P41196)

Travis M. Comstock (P72025)

Katherine J. Bennett (P75913)

Attorneys for Defendant Michigan

Department of Education Michigan

Department of Attorney General

Health, Education & Family Services


2

(313) 578-6800

[email protected]

[email protected]

[email protected]

[email protected]

Gregory M. Starner

Lindsay M. Heck

Walter A. Ciacci

Dominique N. Forrest

Laura A. Grai

White & Case LLP

1155 Avenue of the Americas

New York, NY 10036-2787

(212) 819-8200

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

David G. Sciarra

Gregory G. Little

Jessica A. Levin



Newark, NJ 07102

(973) 624-1815

[email protected]

[email protected]

[email protected]

Counsel for Plaintiffs

/

Division

P.O. Box 30758

Lansing, MI 48909

(517) 373-7700

[email protected]

[email protected]

[email protected]

Timothy J. Mullins (P28021)

John L. Miller (P71913)

Giarmarco, Mullins & Horton, P.C.

Attorneys for Defendant Genesee

Intermediate School District

101 W. Big Beaver Road, 10th

Floor

Troy, MI 48084-5280

(248) 457-7020

[email protected]

Donald B. Miller (P23419)

Frederick A. Berg, Jr. (P38002)

James S. Rosenfeld (P39434)

Brett J. Miller (P68612)

Michael Griffie (P79836)

Hannah Treppa (P80978)

Butzel Long, a professional corporation

Attorneys for Defendant Flint

Community Schools

150 W. Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7020

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]


3

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

AND MOTION FOR JUDGMENT ON THE PLEADINGS








(313) 578-6800 (212) 819-8200





[email protected]

David G. Sciarra

Gregory G. Little

Jessica A. Levin




(973) 624-1815

[email protected]

[email protected]

[email protected]



i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................. Error! Bookmark not defined.

COUNTERSTATEMENT OF THE ISSUES PRESENTED ................................ viii

STATEMENT OF CONTROLLING AUTHORITY .............................................. ix

INTRODUCTION ..................................................................................................... 1

FACTUAL BACKGROUND .................................................................................... 4

A. The Flint Lead Crisis and Its Devastating Impact on an

Already-Vulnerable Population ............................................................. 4

B. Defendants’ Duties Under Federal and State Law ................................ 6

C. Defendants Are Systemically Failing to Meet Their Obligations

Under Federal and State Laws. ............................................................. 7

Defendants Have Systemically Failed to Develop and 1.

Properly Implement Child Find Procedures. .............................. 8

Defendants Have Systemically Failed to Provide a Free 2.

Appropriate Public Education in the Least Restrictive

Environment. ............................................................................... 9

Defendants Have Systemically Failed to Provide 3.

Students with Procedural Safeguards in the Disciplinary

Process. ..................................................................................... 10

Defendants Are Discriminating and Denying Access to 4.

Educational Services on the Basis of Disability. ...................... 11

ARGUMENT ........................................................................................................... 13

Exhaustion Is Not Required Because It Would Be Futile to Exhaust I.

Administrative Remedies. ............................................................................. 13

A. Exhaustion Is Not Required Because Plaintiffs Allege Systemic

Violations that Cannot be Remedied through the Administrative

Process. ................................................................................................ 13

B. Exhaustion Is Not Required Because an Emergency Situation

Exists. .................................................................................................. 24

Plaintiffs Have Standing to Sue for Violations of IDEA, Section 504 II.

and the ADA. ................................................................................................. 26


ii

A. Plaintiffs Allege Injury-in-Fact from the MDE’s Failure to

Fulfill its Obligations Under the IDEA, Section 504 and the

ADA. ................................................................................................... 27

SEAs are obligated to ensure the provision of special 1.

education in compliance with IDEA, Section 504 and the

ADA. ......................................................................................... 28

Plaintiffs allege concrete and substantive injuries from 2.

MDE’s failure to fulfill its enumerated duties under

IDEA, Section 504 and the ADA .............................................. 32

a. Injuries under IDEA ....................................................... 33

b. Injuries under Section 504 and ADA ............................. 38

B. Plaintiffs’ Injuries are Fairly Traceable to MDE’s Failure to

Fulfill its Duties Under Special Education and Anti-

Discrimination Laws. .......................................................................... 40

C. Plaintiffs’ Injuries will be Redressed by the Relief Requested in

the Complaint. ..................................................................................... 43

D. Plaintiffs Also Have Standing to Sue FCS for Failure to

Conduct Appropriate Screenings. ....................................................... 46

The Eleventh Amendment Does Not Bar Plaintiffs’ Claims Against III.

MDE. .............................................................................................................. 48

Plaintiffs Have Set Forth Sufficient Facts to Satisfy the Pleading IV.

Standards of Twombly and Iqbal. .................................................................. 51

A. IDEA Claims Are Properly Pled. ........................................................ 51

B. Title II ADA and Section 504 Claims Are Properly Pled. .................. 56

Plaintiffs’ State-Law Claim Is Not for Educational Malpractice. ................. 58 V.

CONCLUSION ........................................................................................................ 60

CERTIFICATE OF SERVICE ................................................................................ 61


iii

TABLE OF AUTHORITIES

Page(s)

CASES

A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) .................................... 24

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................. 52, 54

Assn’n for Disabled Ams. v. Fla. Int’l Univ., 405 F.3d 954 (11th Cir.

2005) ................................................................................................................... 49

B.C. v. Mount Vernon Sch. Dist., No. 14-3603-CV, 2016 WL 4945421

(2d Cir. Sept. 16, 2016) (unpublished) (Ex.5) .............................................. 43, 45

Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016) ............................................... 50

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................... 52

Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994) ........................................................ 44

Bowers v. Nat‘l Collegiate Athletic Ass‘n, 475 F.3d 524 (3d Cir. 2007) ................ 48

Campbell v. Bd. Of Educ. of the Centerline Sch. Dist., 58 F. App’x

162 (6th Cir. 2003) (Ex. 7) ................................................................................. 57

Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002) ....................................... 51

Charlene R. v. Solomon Charter Sch., 63 F. Supp. 3d 510, 516 (E.D.

Pa. 2014) ............................................................................................................. 42

Coleman v. Newburgh, 503 F.3d. 198 ............................................................... 24, 25

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474 (4th Cir. 2005) .............................................................................................. 49

D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010) .............................. 36, 37

Dean v. Univ. at Buffalo School of Medicine and Biomedical Sciences,

804 F.3d 178 (2d Cir. 2015) ............................................................................... 49

Dixon v. Hamilton City Sch., 1999 U.S. Dist. LEXIS 21388 (S.D.

Ohio Nov. 4, 1999) (Ex.3) .................................................................................. 14


iv

Doe v. Arizona Dep’t of Educ., 111 F.3d 678 (9th Cir. 1997) ........................... 55, 56

Ellenberg v. N.M. Military Inst., 478 F.3d 1262 (10th Cir. 2007) .......................... 42

F.H. v. Memphis City Schs., 764 F.3d 638 (6th Cir. 2014) ..................................... 14

Found. v. Gates, 573 F.3d 797 (D.C. Cir. 2009) ..................................................... 45

Frank v. Univ. of Toledo, 621 F. Supp. 2d 475 (N.D. Ohio 2007) .......................... 49

Gadsby v. Grasmick, 109 F.3d 940 (4th Cir. 1997) ................................................. 43

Handy-Clay v. City of Memphis, 695 F.3d 531 (6th Cir. 2012) .............................. 52

Hendricks v. Gilhool, 709 F. Supp. 1362 (E.D. Pa. 1989) ...................................... 24

J.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir. 2004) ..................................... 14, 15

Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982) ..................................................... 24

Komninos v. Upper Saddle River Bd. Of Educ., 13 F.3d 775 (3d Cir.

1994) ............................................................................................................. 24, 25

Lexmark Itn’l, Inc. v. Static Control Components, Inc., 572 U.S. __,

134 S. Ct. 1377 (2014) ........................................................................................ 42

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). ............................ 27, 28, 33

M.A. v. State Operated Sch. Dist. of Newark, 344 F.3d 335 (3d Cir.

2003) ............................................................................................................. 24, 42

M.G. v. N.Y. City Dep’t of Educ., 162 F. Supp. 3d 216, 242 (S.D.N.Y.

2016) ................................................................................................................... 23

McCormick v. Miami Univ., 693 F.3d 654 (6th Cir. 2012) ..................................... 52

Modd v. Cty. of Ottawa, 2010 WL 5860425 (W.D. Mich. Aug. 4,

2010) (Ex. 6) ....................................................................................................... 52

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ....................................................... 51

New Mexico Ass‘n for Retarded Citizens v. N.M., 678 F.2d 847 (10th

Cir. 1982) ............................................................................................................ 24

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011) .......................... 52


v

Page v. Klein Tools, Inc., 610 N.W. 2d 900 (Mich. 2000) ................................ 58, 59

Pachl v. Seagren, 453 F.3d 1064 (8th Cir. 2006) .................................................... 37

Parsons v. U.S. Dep‘t of Justice, 801 F.3d 701 (6th Cir. 2015) .......................passim

Rose v. Yeaw, 214 F.3d 206 (1st Cir. 2000) ............................................................. 24

S. v. Tenn. Dep’t of Educ., 2016 U.S. Dist. LEXIS 91589 ...............................passim

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ............................. 42, 44

T.H. v. Cincinnati Pub. Sch. Dist. Bd. Of Ed, 2014 U.S. Dist. LEXIS

87698 (S.D. Ohio June 27, 2014) (Ex.4) ............................................................ 25

Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006) ....................................................... 49

Ullmo v. Gilmour Acad., 273 F.3d 671 (6th Cir. 2001) ......................... 37, 42, 43, 45

U.S. v. Ga., 546 U.S. 151 (2006) ............................................................................. 48

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252

(1977) .................................................................................................................. 42

W.H. v. Tenn. Dep’t of Educ., 2016 U.S. Dist. LEXIS 7206 ............................passim

Warth v. Seldin, 422 U.S. 490 (1975) ...................................................................... 28

Woolcott v. State Bd. of Educ., 351 N.W.2d 601 (Mich. App. 1984) ...................... 59

STATUTES AND RULES

20 U.S.C. 1401 ..................................................................................................... 9, 17

20 U.S.C. § 1407(a)(1) ............................................................................................. 28

20 U.S.C. § 1412(a)(1)(A) ................................................................................passim

20 U.S.C. 1413 ..................................................................................................passim

20 U.S.C. § 1414(a)(1) ......................................................................................passim

20 U.S.C. § 1415 .......................................................................................... 11, 18, 23

29 U.S.C. § 794 .................................................................................................passim


vi

42 U.S.C. § 12101 et seq. ......................................................................................... 12

42 U.S.C. § 12131(1) ............................................................................................... 33

42 U.S.C. § 12132 ...................................................................................... 6, 7, 23, 33

28 C.F.R. § 35.130 ............................................................................................. 32, 42

28 C.F.R. § 504 ........................................................................................................ 42

34 C.F.R. § 104 ............................................................................................ 12, 32, 42

34 C.F.R. § 300.8(c)(9)(i) .......................................................................................... 9

34 C.F.R. § 300.101(a) ............................................................................................... 9

34 C.F.R. § 300.110 ..................................................................................... 12, 23, 29

34 C.F.R. § 300.111(a)(1)(i) ................................................................................ 8, 17

34 C.F.R. § 300.112, §§ 300.320-24 .......................................................................... 9

34 C.F.R. § 300.114(a)(2) ........................................................................................ 10

34 C.F.R. § 300.301 ............................................................................................. 8, 17

34 C.F.R. § 300.304(c)(4) ........................................................................................ 18

34 C.F.R. § 300.600(a)(1)-(2) ............................................................................ 30, 31

34 CFR §§ 300.530 - 300.536 .................................................................................. 23

34 C.R.F § 300.600(a)(4) ......................................................................................... 31

Mich. Comp. Laws § 16.405 .................................................................................... 51

Mich. Comp. Laws § 380.1701, et seq. ................................................................... 59

Mich. Comp. Laws § 380.1711(1)(h) .................................................................. 6, 58

Mich. Comp. Laws §§ 380.1711, 380.1751 ............................................................. 59

Mich. Comp. Laws § 380.1751(1) ............................................................................. 7


vii

MISCELLANEOUS

Eleventh Amendment ................................................................................... 48, 50, 51

H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985) ................................................. 25

U.S. Constitution Article III ......................................................................... 27, 28, 42


viii

COUNTERSTATEMENT OF THE ISSUES PRESENTED

1. Plaintiffs are not required to exhaust administrative remedies before bringing

their claims against Defendants because exhaustion would be futile. The

Complaint alleges facts to support claims of systemic violations and the Flint

water crisis presents an emergency situation.

2. Plaintiffs have standing to sue because they have alleged injury-in-fact,

causation, and redressability.

3. The Eleventh Amendment does not bar Plaintiffs’ claims against Defendant

MDE because Title II of the ADA validly abrogates state sovereign

immunity.

4. Plaintiffs have alleged sufficient facts to satisfy the pleading standards of

Twombly and Iqbal, placing Defendants on fair notice of their claims and the

grounds for these claims. Plaintiffs have provided detailed, specific factual

allegations outlining Defendants’ failure to comply with the IDEA and

alleging discriminatory intent and discriminatory effect under Title II of the

ADA and Section 504.


ix

STATEMENT OF CONTROLLING AUTHORITY

Plaintiffs rely on the Individuals with Disabilities Education Act (IDEA), 20

U.S.C. § 1400 et seq., Title II of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et

seq., and Mich. Comp. Laws § 380.1701 et seq. to establish the framework of

rules, standards, and obligations which Defendants owe to Plaintiffs related to their

education as students who have or who may develop a disability.

Plaintiffs rely on F.H. v. Memphis City Sch., 764 F.3d 638 (6th Cir. 2014),

J.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir. 2004), W.H. v. Tenn. Dep’t of

Educ., 2016 U.S. Dist. LEXIS 7206 (M.D. Tenn. Jan. 20, 2016) (Ex. 1) , and N.S.

v. Tenn. Dep’t of Educ., 2016 U.S. Dist. LEXIS 91589 (M.D. Tenn. July 14, 2016)

(Ex.2), for the rule that exhaustion is not required when it would be futile to

exhaust administrative remedies. Specifically, these cases demonstrate that

exhaustion is not required when plaintiffs allege systemic violations that cannot be

remedied by the administrative process. Plaintiffs rely on Coleman v. Newburgh

Enlarged City Sch. Dist., 503 F.3d. 198 (2d Cir. 2007), for the point that

exhaustion is not required when an emergency situation exists.

Plaintiffs rely on Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), to

demonstrate that they have sufficiently alleged injury-in-fact, causation, and

redressability.


x

Plaintiffs rely on United States v. Georgia, 546 U.S. 151 (2006), Bowers v.

Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 556 (3d Cir. 2007), Toledo v.

Sanchez, 454 F.3d 24, 40 (1st Cir. 2006), Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474 (4th Cir. 2005), and Assn’n for Disabled Ams.

v. Fla. Int’l Univ., 405 F.3d 954, 959 (11th Cir. 2005), to demonstrate that the

Eleventh Amendment is no bar to Plaintiffs’ claims against the Michigan

Department of Education because Title II of the ADA validly abrogates state

sovereign immunity.

Plaintiffs rely on Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), to demonstrate that they have satisfied the

pleading standards required to defeat a motion to dismiss.


1

INTRODUCTION

When State officials switched Flint’s water supply to the Flint River as a

cost-cutting measure in April 2014, the parents and guardians of the approximately

30,000 children residing in the community could not have known that poison

would soon pour out of their faucets. They also did not know that the lead in their

water would place their children’s cognitive development and ability to learn and

succeed in school gravely at risk. And those same parents and guardians could not

have imagined that, over two years later, the governmental entities entrusted with

the education of their children would attempt to absolve themselves of all

responsibility by claiming they had done enough, and oppose efforts to secure

relief for those children already entitled to special education services and those at

risk of a disability and in need of such services.

In moving to dismiss Plaintiffs’ class action complaint, Defendants

Michigan Department of Education (MDE), Genesee Intermediate School District

(GISD), and Flint Community Schools (FCS) argue that the individual members of

the plaintiff class should have exhausted administrative remedies; do not have

standing to sue; and have failed to state a claim. Defendants are wrong on all

counts. The Complaint, through its detailed allegations, chronicles the ongoing and

severe educational depravation endured by the families of children with disabilities

in the Flint schools and the obstacles they encounter in the pursuit of a meaningful


2

education for their children. Under the Individuals with Disabilities Education Act

(IDEA), Title II of the Americans with Disabilities Act (ADA), Section 504 of the

Rehabilitation Act, and Michigan law, Defendants are responsible for providing to

Plaintiffs and the plaintiff class a free and appropriate public education and non-

discriminatory access to services and programs designed to enable them to achieve

their maximum potential. Yet Defendants have systemically failed to carry out

their responsibilities as prescribed by federal and state law, and Flint’s lead crisis

has only made those failures more egregious.

MDE asserts “there is no real connection” between the Flint lead crisis and

“Plaintiffs’ favored changes to delivery of special education in Michigan.” (MDE

Br. at 1). If MDE agreed that there existed severe and systemic deficiencies in the

delivery of special education in Flint well before the water crisis, the agency would

be correct. But MDE blindly overlooks the myriad ways in which the lead

poisoning inflicted on Flint children has compounded the problems with special

education in the Flint schools and will exacerbate those problems going forward.

There is simply no safe level of lead exposure for children, and, as documented

throughout the Complaint, even exposure to low levels is associated with learning

deficits, memory loss, behavioral issues, and reduced outcomes for students. As

Michigan’s state educational agency (SEA), MDE bears the ultimate responsibility

under federal law to ensure that Flint’s public schools provide special education


3

services to all eligible students and those students subjected to the lead crisis who

are now – and will be – in need of such services.

Defendants would have each Plaintiff embark upon an individualized

administrative exhaustion process that would drag on for months, if not years. But

administrative exhaustion is not required where it would be futile because systemic

violations are at issue and where an emergency exists. Both of these exceptions

apply with full force here. The plaintiff class also has standing to sue, as Plaintiffs

demonstrate injuries that are fairly traceable to each defendant and which judicial

redress can, and must, remedy. Taken as a whole, and drawing all reasonable

inferences from the pleaded factual allegations in the light most favorable to

Plaintiffs, the Complaint describes systemic violations of federal and state law

governing special education and an ongoing pattern and practice of discrimination

against students with disabilities. At this early, pre-discovery stage of the case, it is

readily apparent on the face of the Complaint that Plaintiffs have satisfied the

pleading standards necessary to withstand a motion to dismiss.

Lastly, FCS denigrates the Complaint as nothing more than a “wish-list for

the legislature.” (FCS Br. at 30). This argument neglects to recognize the

mandates of federal and state law with which Defendants are manifestly failing to

comply. This Court, therefore, represents the only effective guarantor of Plaintiffs’

education rights and possesses the requisite authority to systematically remedy


4

violations of those rights. Accordingly, Defendants’ motions to dismiss should be

denied.

FACTUAL BACKGROUND

A. The Flint Lead Crisis and Its Devastating Impact on an Already-

Vulnerable Population

Even before the state-created lead crisis, Flint, Michigan was a community

in dire circumstances: the region has lost 41% of employment since 1980, 40% of

residents live in poverty, and essential education and public health services have

deteriorated alongside the economy. Compl. at ¶ 2 & n. 1. Among Flint’s hardest

hit citizens are the most vulnerable: children. The 42% childhood poverty rate in

Flint is nearly three times the nationwide average of 14.8%. Compl. at ¶ 2. And

Flint’s public education system is failing, with rapidly declining enrollment, low

graduation rates, and high drop-out rates. Compl. at ¶ 3. Faced with

insurmountable deficits, Flint has reduced staff, programs, and services, consigning

students to under-resourced and overcrowded classrooms and schools. Compl. at

¶¶ 3, 82-86.

In April 2014, Flint was dealt another crippling blow when State officials

changed its water source to the Flint River, exposing Flint’s residents to lead-

contaminated water for a period of at least 18 months. Among those exposed were

30,000 children between the ages of zero and 19, each of whom is now at risk of

developing a disability or having existing disabilities exacerbated. Compl. at ¶¶ 8,


5

11, 60. A February 2016 study conducted by Hurley Medical Center found that the

incidence of elevated blood lead levels in Flint had doubled, and every single

school in Flint had water samples that testified positive for lead. Compl. at ¶¶ 61,

71. Put simply, exposure to lead was chronic, toxic, and community-wide. Compl.

at ¶ 70.

Lead is a confirmed potent neurotoxin, and research indicates no level of

exposure to it is safe. Compl. at ¶¶ 62- 63. In fact, even very low levels of exposure

are associated with learning and behavioral deficits in children. Compl. at ¶¶ 62-

63. Exposure to lead, as occurred in Flint, can – and will – profoundly alter the

trajectory of children’s lives. Children exposed to lead face myriad potential

problems, including lowered intelligence, slowed growth and development,

learning and behavioral challenges, memory loss, poor academic performance,

attention deficit hyperactivity disorder (ADHD), hearing and speech problems,

aggression, juvenile delinquency, and criminal behavior. Compl. at ¶¶ 64-66.

Flint’s children, who suffer from multiple factors that increase their exposure to

lead – poor nutrition, concentrated poverty, old housing stock, and scarce resources

for alternative water sources – are particularly vulnerable. Compl. at ¶¶ 68-69.

Without a comprehensive and proactive response from Defendants, the exposure to

lead, when coupled with these other risk factors, will irrevocably narrow Flint’s

children’s prospects for leading healthy and productive lives. Indeed, they will


6

find themselves trapped in a cycle of poverty, without opportunities for self-

empowerment and upward mobility not only for them but also for generations to

come. Compl. at ¶¶ 5-6.

B. Defendants’ Duties Under Federal and State Law

As Michigan’s SEA, Defendant MDE bears ultimate responsibility for

ensuring that all public schools in Michigan comply with the IDEA. 20 U.S.C. §

1412(a)(11)(A). Additionally, as a “program or activity” provider under Section

504 of the Rehabilitation Act and a “public entity” under Title II of the ADA,

MDE is obligated to ensure compliance with both Acts, which prohibit

discrimination against students with disabilities. 29 U.S.C. § 794(b); 42 U.S.C. §

12132(1)(A).

Defendant GISD is the intermediate school district responsible for

overseeing special education services for public school children in Flint. Under

Michigan law, GISD is responsible for providing federal, state, and local funds to

FCS for special education, coordinating the delivery of special education services,

and investigating special education programs and services. Mich. Comp. Laws §

380.1711(1)(h). GISD is also a “program or activity” provider under Section 504

of the Rehabilitation Act and a “public entity” under Title II of the Americans with

Disabilities Act (“ADA”), and thus is also obligated to ensure compliance with

both Acts. 29 U.S.C. § 794; 42 U.S.C. § 12132.


7

Defendant FCS is a public school district in Flint and is required under

Michigan law to provide “special education programs and services designed to

develop the maximum potential of each student with a disability in its district …

for whom an appropriate educational or training program can be provided in

accordance with the intermediate school district special education plan.” Mich.

Comp. Laws § 380.1751(1). FCS is a local educational agency (“LEA”) under

IDEA and therefore is responsible for the provision of special education in a

manner consistent with IDEA. 20 U.S.C. §1414(a)(1). FCS is also a “program or

activity” provider under Section 504 of the Rehabilitation Act and a “public entity”

under Title II of the ADA, and thus is obligated to ensure compliance with both

Acts. 29 U.S.C. § 794(b); 42 U.S.C. § 12132(1)(A).

C. Defendants Are Systemically Failing to Meet Their Obligations

Under Federal and State Laws.

As the Complaint details, Defendants are failing on a systemic basis to

provide Flint’s students with disabilities the services to which they are entitled

under federal and state law. Defendants’ systemic failures include failing to

develop and implement “child find” procedures to identify and evaluate students

with disabilities; failing to provide a free appropriate public education (FAPE) in

the least restrictive environment (LRE); failing to protect students’ due process

procedural rights during the disciplinary process; and discriminating against and

denying educational services to children on the basis of disabilities.


8

Defendants Have Systemically Failed to Develop and 1.

Properly Implement Child Find Procedures.

Pursuant to the IDEA, each state must effectuate policies and procedures

that ensure all children within that state who have disabilities and who require

special education and related services are identified, located, and evaluated. 20

U.S.C. §1412(a)(3)(A); 34 C.F.R. § 300.111(a)(1)(i). To be eligible for services

under the IDEA, a child must receive an initial evaluation conducted by a SEA or

LEA. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. §300.301(a). The initial evaluation

must determine whether the child has a disability and what the educational needs

of that child are. 20 U.S.C. § 1414(a)(1)(C)(i); 34 C.F.R. § 300.301(c)(2). This

identification and evaluation process is referred to as “child find.”

Defendants have failed to ensure that the prescribed comprehensive child

find procedures are developed and implemented in the Flint schools. FCS and

GISD are engaged in a pattern and practice of not providing screening and timely

referrals for evaluations to identify children with qualifying disabilities, as

demonstrated by the experiences of all named Plaintiffs. Compl. at ¶¶ 90-348.

Additionally, MDE fails to appropriately monitor, conduct oversight, and provide

FCS and GISD with the resources and expertise they need to perform the required

evaluations. Compl. at ¶¶ 94, 98, 100, 113, 116, 131,134,146, 157, 165, 170-74,

194, 197, 202, 211, 218-23, 226-32, 241, 258, 260, 261, 270, 282-83, 344-46, 365.

As a result, children with disabilities and at risk of a disability remain unidentified


9

and are denied the educational services to which they are legally entitled under

IDEA and anti-discrimination law.

These failures are compounded in Flint, where every child was exposed to

elevated lead levels over an extended timeframe. As Plaintiffs allege, Defendants’

child find procedures have failed to respond to this crisis. Defendants still

systematically fail to provide early screening and timely referrals for three- and

four-year-olds residing in Flint and systematically fail to provide appropriate early

intervention services, including universal, high-quality preschool education, even

though thousands of youngsters remain – and will remain – at risk of a disability

from lead exposure, a disabling condition explicitly recognized under IDEA. 34

C.F.R. § 300.8(c)(9)(i); 20 U.S.C. §1401(3)(A)(ii) ; Compl. at ¶¶ 276-83, 285, 334,

362-63.

Defendants Have Systemically Failed to Provide a Free 2.

Appropriate Public Education in the Least Restrictive

Environment.

Federal law requires that children with qualifying disabilities receive a

FAPE. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a). The IDEA mandates

that Defendants design and develop an individualized education program (“IEP”)

for each qualifying child in a school district. 20 U.S.C. § 1412(a)(4), §1414(d); 34

C.F.R. § 300.112, §§ 300.320-24. IEPs must contain specific information to ensure

that they are designed to confer a meaningful educational benefit, including


10

measurable annual goals, a statement of the special education services that will be

provided to the student, and a statement of any individual accommodations

necessary to measure academic achievement. 20 U.S.C. § 1414(d)(3). To the

maximum extent possible, the IDEA requires that children with disabilities be

educated in settings with their non-disabled peers. 20 U.S.C. § 1412(a)(5); 34

C.F.R. § 300.114(a)(2).

As illustrated by the experiences of the named Plaintiffs, Defendants FCS

and GISD are systematically failing to provide special education and related

services compliant with students’ IEPs in the least restrictive environment.

Plaintiffs also allege MDE is failing to provide FCS and GISD with the expertise

and resources necessary to deliver FAPE in the least restrictive environment.

Compl. at ¶¶ 94-102, 110, 113-14, 123-26, 144-47, 150, 154, 158-64, 180-84,194-

95, 199, 208, 217, 238, 242-43, 255, 258-63, 265, 272-74, 278-81, 290, 293, 297,

299, 320, 339, 341, 345, 370-71. These failures are demonstrated by Plaintiffs’

allegation that the percentage of students with IEPs in Flint who spend less than

40% of their day in a regular education classroom is nearly double Michigan’s

statewide average. Compl. at ¶ 78.

Defendants Have Systemically Failed to Provide Students 3.

with Procedural Safeguards in the Disciplinary Process.

The IDEA contains procedural safeguards to ensure that children with

disabilities are not removed from the learning environment on account of their


11

disabilities. For example, after ten cumulative days of suspensions or expulsions, a

manifestation determination review (“MDR”) must be conducted to determine

whether the student’s behavior is related to his or her disability. 20 U.S.C.

§1415(k)(1)(E). If the behavior is a manifestation of his or her disability, that child

must remain at school and must be provided with the behavioral services necessary

to support and reinforce positive behavior. 20 U.S.C §1415(k)(1)(E)-(F).

As illustrated by the experiences of the named Plaintiffs, Defendants FCS

and GISD have engaged in a pattern and practice of failing to provide students

with disabilities the procedural safeguards mandated by the IDEA in the

disciplinary process and of using unduly harsh disciplinary measures on students

with disabilities, including employing physical restraints and seclusion techniques.

Compl. at ¶¶ 108-110, 140-42, 148, 251-52, 301-03, 319-20. Defendant MDE has

also failed in its oversight role by not providing FCS and GISD with the resources

and expertise needed to ensure compliance with IDEA’s procedural safeguards.

Compl. at ¶¶ 4, 16, 365, 381. As Plaintiffs allege, these systemic failures have

resulted in alarmingly high suspension and expulsion rates in Flint. In 2014-15,

13.59% of special education students in FCS were suspended or expelled for more

than ten days – over five times the statewide average of 2.48%. Compl. at ¶ 80.

Defendants Are Discriminating and Denying Access to 4.

Educational Services on the Basis of Disability.

Under the IDEA, Defendant MDE must ensure that Defendants FCS and


12

GISD take steps to guarantee that children with disabilities have available to them

the same variety of educational programs and services that are available to

nondisabled children, including art, music, industrial arts, consumer and

homemaking education, and vocational education. 20 U.S.C. § 1412(a)(2), §

1413(a)(1); 34 C.F.R. § 300.110. Additionally, under Section 504 of the

Rehabilitation Act and Title II of the ADA, Defendants cannot deny to disabled

students access to essential services and programming available to nondisabled

students solely on account of their disabilities. 29 U.S.C. § 794 et seq.; 34 C.F.R. §

104.31-.39; 42 U.S.C. § 12101 et seq.

As the experiences of named Plaintiffs show, Defendants are systematically

failing to ensure that children with disabilities have access to the same range and

quality of programs provided to nondisabled children. Compl. at ¶¶ 108, 110, 112,

123, 125-26, 184, 209, 259, 261, 301, 384, 387, 391. As Plaintiffs’ allegations

demonstrate, many children with disabilities are repeatedly and unnecessarily

segregated and secluded from the general education environment. Compl. at ¶¶

108-10, 144, 148-49, 151, 177, 184, 209, 243, 273, 290, 301-02. Children with

disabilities are also sent home and/or suspended without proper documentation,

resulting in a vast underreporting of discriminatory exclusions, Compl. at ¶¶ 110,

143, 254, and Defendants routinely fail to provide take-home resources that would

allow suspended or expelled children to make academic progress. Compl. at ¶¶


13

110; 255; 294.

ARGUMENT

Exhaustion Is Not Required Because It Would Be Futile to Exhaust I.

Administrative Remedies.

Defendants MDE, FCS, and GISD all argue that the Complaint should be

dismissed because Plaintiffs have failed to exhaust their administrative remedies.

But exhaustion is not a blanket requirement for all claims brought under the IDEA.

As Defendants concede in their briefs, exhaustion is not required when

administrative remedies are futile. MDE Br. at 23; FCS Br. at 23; GISD Br. at 21.

Plaintiffs have clearly established futility in this case because Defendants

systematic violations of IDEA, as alleged in the Complaint, cannot be remedied

through the administrative process. Exhaustion is also not required because an

emergency situation exists. Treating the factual allegations as true and drawing all

reasonable inferences in Plaintiffs’ favor as is required at the pleadings stage,

Plaintiffs’ Complaint states plausible claims of systemic violations and emergency

circumstances such that exhaustion is not required.

A. Exhaustion Is Not Required Because Plaintiffs Allege Systemic

Violations that Cannot be Remedied through the Administrative

Process.

The futility exception applies when the administrative process that is

currently available is inadequate or insufficient to protect the plaintiffs’ rights. See

F.H. v. Memphis City Schs., 764 F.3d 638, 644 (6th Cir. 2014) (“[e]xhaustion is


14

not required if it would be futile or inadequate to protect the plaintiff's rights”)

(quoting Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000)).

Similarly, exhaustion is not a prerequisite when plaintiffs seek relief that is not

otherwise available through the administrative process. See Dixon v. Hamilton City

Sch., 1999 U.S. Dist. LEXIS 21388 at *17 (S.D. Ohio Nov. 4, 1999) (Ex.3)

(exhaustion is not required when “the relief that Plaintiffs seek . . . is not available

through the administrative process.”). Such is the case here because the gravamen

of Plaintiffs’ Complaint is to allege and seek relief from systemic failures, none of

which has an adequate remedy through routine administrative procedures.

It is well established that when plaintiffs allege systemic violations requiring

system-wide remedies, the administrative process cannot provide adequate relief

and exhaustion is, therefore, futile. For example in J.S. v. Attica Cent. Schs., 386

F.3d 107 (2d Cir. 2004), the leading case on the futility of exhaustion when

system-wide relief is necessary, the plaintiffs alleged systemic violations under the

IDEA. These violations included failures by the school district to prepare and

implement IEPs; to provide appropriate training to staff; to perform timely

evaluations and reevaluations; to provide parents with procedural safeguards

related to identification and evaluation of children with disabilities; and to perform

legally required responsibilities in a timely matter. Id. at 115. After a survey of

other precedents, the court held that “[t]he common element . . . is that the


15

plaintiffs’ problems could not have been remedied by administrative bodies

because the framework and procedures for assessing and placing students in

appropriate educational programs were at issue, or because the nature and volume

of complaints were incapable of correction by the administrative hearing process.”

Id. at 114. And the court distinguished the systemic reform case before it from a

“textbook” IDEA lawsuit involving an individual child whose parents were

dissatisfied with the content of the IEP developed for her. Id. at 114-15. Because

the plaintiffs’ complaint fell well outside the “textbook” category and sought

systemic remedies not available through the administrative process, the court held

that exhaustion was not required. Id. at 115. In holding that exhaustion was futile,

the court also recognized the lower pleading standard on a motion to dismiss. Id.

Similarly, the systemic violations exception to exhaustion was recently

recognized by district court decisions in this circuit. In W.H. v. Tenn. Dep’t of

Educ., 2016 U.S. Dist. LEXIS 7206 at *19 and N.S. v. Tenn. Dep’t of Educ., 2016

U.S. Dist. LEXIS 91589 at *34, plaintiffs defeated motions to dismiss because they

alleged systemic violations that rendered exhaustion futile. In W.H., the plaintiffs

alleged that the school district and SEA systematically denied LRE placements and

placed students in inappropriate segregated settings. W.H., 2016 U.S. Dist. LEXIS

7206 at *4. In N.S., the plaintiffs alleged that a lack of training, a failure to collect

data, and a failure to implement alternative policies and strategies contributed to


16

the use and overuse of isolation and restraint practices by defendants. N.S., 2016

U.S. Dist. LEXIS 91589 at *30. The district courts, concurring with the Second

Circuit’s reasoning in J.S., held that exhaustion would be futile because, first, the

plaintiffs “are challenging practices that occur across the school district and the

state at a meta-level,” W.H., 2016 U.S. Dist. LEXIS 7206 at *16-17, and, second,

because plaintiffs alleged “specific incidents that should have made the defendants

aware of a problem. . . [including] a disproportionate number of incidents of

isolation and restraint in [the district] as compared to other school districts” and

“evidence that the problem is widespread,” among other violations, N.S., 2016 U.S.

Dist. LEXIS 91589 at *34. Finally, the court rejected the defendants’

characterization of the complaints as seeking only individualized relief pertaining

to each plaintiff’s IEP, citing the plaintiffs’ request for injunctive relief

encompassing systemic reforms to the school district’s overarching policies and

practices. W.H., 2016 U.S. Dist. LEXIS 7206 at *19-20, 29-31.

Plaintiffs’ Complaint in this case fits squarely within the systemic violations

exception to exhaustion; this case is materially indistinguishable from J.S., W.H.,

and N.S. As is clear from the Complaint, Plaintiffs’ primary challenge is not to the

individual instances in which their rights were violated but rather to the numerous

systemic failures of Defendants to comply with federal and state law. Compl. at ¶¶

349-384.


17

Plaintiffs’ Complaint alleges four systemic violations which can only be

remedied through system-wide relief, remedies unavailable through the

administrative process. First, Defendants have failed to develop and implement

sufficient child find procedures. Compl. at ¶¶ 349-365. Second, Defendants fail to

provide FAPE in the least restrictive environment. Compl. at ¶¶ 366-371. Third,

Defendants fail to provide students with procedural safeguards in the disciplinary

process. Compl. at ¶¶ 372-381. Lastly, Defendants have discriminated against

students with disabilities by depriving them of access to educational services

provided to their non-disabled peers. Compl. at ¶¶ 382-384. Administrative review

of individual claims is simply inadequate to address these violations. As Plaintiffs

allege, significant, system-wide reforms of Defendants policies and practices are

required.

As to the first systemic violation, MDE, GISD, and FCS are each

responsible for identifying, locating, and evaluating students with disabilities who

require special education services. 20 U.S.C. §1412(a)(3)(A); 20 U.S.C.

§ 1414(a)(1)(A); 20 U.S.C. 1401(3); 34 C.F.R. § 300.111(a)(1)(i); 34 C.F.R.

§300.301(a). See also Factual Background, supra at 4.Plaintiffs allege Defendants

are engaged in the systemic practice of not screening and evaluating students as

required by child find and that this practice is even more egregious given the

hundreds, if not thousands of lead poisoned children in Flint, a risk factor


18

delineated under IDEA. Despite both the debilitating lead crisis and the high

percentage of students who have already been classified as having a qualifying

disability, Plaintiffs allege that there remains a chronic under-evaluation of

students to determine if additional educational supports are required, and

Defendants have not implemented appropriate educational screening since

knowledge of the Flint water crisis became known in 2015. Administrative

exhaustion by individual students will not remedy this systemic failure. Indeed, the

need for city-wide enhanced screenings points to the inefficacy of individualized

administrative review and demonstrates that exhaustion would be futile. Plaintiffs

seek enhanced screening for all children within FCS to screen for the adverse

impact of elevated blood lead levels and to determine whether or not a child is

eligible for special education services. Compl. at ¶ 395 D, E. Exhaustion would

require parents and guardians to initiate, on an individualized basis, administrative

proceedings to challenge the lack of, or inappropriate, screening and evaluation.

See 20 U.S.C. § 1415(b)(6).1 Plaintiffs allege that this individualized process is

inadequate for Flint students, given that the entire population was exposed to 1 34 C.F.R. §300.304(c)(4) requires the public agency to ensure that the child is

assessed in all areas related to the suspected disability. This could include, if

appropriate, health, vision, hearing, social and emotional status, general

intelligence, academic performance, communicative status, and motor abilities.

This is not an exhaustive list of areas that must be assessed. Decisions regarding

the areas to be assessed are determined by the suspected needs of the child. If a

child's behavior or physical status is of concern, evaluations addressing these areas

must be conducted.


19

elevated lead levels and put at risk of a disability.2 Thus, the relief Plaintiffs seek

cannot be afforded through the individualized administrative process.

In addition, Plaintiffs allege that the State of Michigan’s school funding

structure creates perverse incentives to minimize the number of children identified,

located, and evaluated for special education. Compl. at ¶¶ 87-88. This funding

structure forces FCS to divert general funds to special education through a process

identified by the MDE as cross-subsidization. Defendants are under severe

budgetary constraints that necessitate systemically referring fewer students for

special educational screenings and evaluations in order to preserve funding for the

general education program. Id. In W.H. v. Tenn. Dep’t of Educ., 2016 U.S. Dist.

LEXIS 7206 at *19 (M.D. Tenn. 2016), plaintiffs challenged, among other

violations, the funding apparatus surrounding special education, in which improper

financial incentives resulted in the plaintiffs being placed in more restrictive

environments. The court held that exhaustion would be futile because “the state is

a defendant in this action and has an interest in upholding, rather than changing, its

current practices” and that “[t]he plaintiffs are challenging practices that occur

2 In considering the burdens of the administrative process, it is also appropriate to

take into consideration the fact that Flint students are overwhelmingly from

impoverished households. See e.g., M.G. v. N.Y. City Dep't of Educ., 162 F. Supp.

3d 216, 242 (S.D.N.Y. 2016) (“Such review processes are inefficient, burdensome,

and available only to those families with the resources to pursue them.”) (certifying

certain classes of plaintiffs seeking relief under the IDEA and Section 504).


20

across the school district and the state at a meta-level, practices that are removed

from the local-level evaluation of students’ abilities and determinations of services

needed.” Id. at 15, 16-17. The same is true here.

Defendants’ second systemic violation is their pattern and practice of failing

to provide a free appropriate public education in the least restrictive environment.

Plaintiffs detail specific facts supporting this systemic violation. See e.g., Compl.

at ¶ 77 (“These 907 students with special needs are not being provided with special

education and related services in compliance with their IEPs in the least restrictive

environment.”); Compl. at ¶ 78 (“The percentage of students in FCS schools with

an IEP . . . who receive their education in a regular education classroom for less

than 40% of the day has been nearly double the statewide percentage . . .”). These

facts demonstrate that Defendants’ current policies and practices result in a denial

of Plaintiffs’ right to FAPE and LRE not just in isolated instances, but on a

systemic basis across the district. Relief for this violation must likewise be

systemic by reforming Defendants’ policies and practices, along with ensuring

sufficient resources and support at the school and classroom levels.3

Similarly, Plaintiffs have alleged the third systemic violation of a pattern and

3 FCS suggests that Plaintiffs’ allegations of Defendants’ failure to provide early

interventions including universal preschool is a matter solely within the purview of

the Michigan Legislature. FCS Br. at 29-30. However, as alleged in Plaintiffs’

Complaint, the provision of early interventions including universal preschool is an

essential remedy to fulfill Defendants’ obligations regarding child find and the

provision of FAPE. Compl. at ¶ 51.


21

practice of failing to provide the procedural safeguards prescribed by IDEA in the

student disciplinary process. Compl. at ¶ 53, 373-74. To guard against students

being removed from the learning environment solely because of their disabilities,

the IDEA mandates various procedural safeguards for students with disabilities

who are subject to disciplinary removals. 34 CFR §§300.530 - 300.536. Plaintiffs’

experiences illustrate Defendants’ systemic failure to avoid discriminatory

discipline and provide procedural safeguards. See e.g., Compl. at ¶ 109 (“D.R. was

suspended or sent home from school more than 30 times during the 2015-2016

school year … His exclusions and suspensions [are] vastly underreported.”);

Compl. at ¶ 140 (“C.D.M was handcuffed for nearly an hour by a Flint Police

Department school resource officer.”); Compl. at ¶ 177 (“J.T. was suspended on

March 29, 2016, the day after he received his IEP.”); Compl. at ¶ 249 (“C.D. was

once suspended for 10 days because he hit a student in self-defense after the

student physically attacked him.”); Compl. at ¶ 292 (“Instead of referring [O.N.]

for an evaluation … [his teacher] instructed the school to place him in a first grade

classroom with a teacher who had a reputation for being a strict disciplinarian.”).

These practices can only be remedied through the imposition of the systemic relief

sought by Plaintiffs including clear and compliant policies for suspension and

expulsion; consistent provision of manifestation determination reviews; training

and supports for teacher and staff; comprehensive data collection; and


22

implementation of a system of positive behavioral supports.

Finally, Plaintiffs allege a fourth systemic violation: discrimination against

students with disabilities by denying them access to the educational services

provided to their non-disabled peers. Such discrimination is prohibited under

IDEA, Section 504, and the ADA. 20 U.S.C. § 1412(a)(2), § 1413(a)(1); 34 C.F.R.

§ 300.110; 29 U.S.C. § 794(a); 42 U.S.C. § 12132. Again, the allegations in

Plaintiffs’ Complaint illustrate Defendants’ systemic failure to comply with these

requirements. See Compl. at ¶ 108 (Plaintiff D.R. secluded from the general

education environment); Compl. at ¶¶ 143, 150 (Plaintiff C.D.M. subjected to

regular exclusions from his educational placement and placed in full-time

classroom for students with Emotional Impairments with no consultation of his

parent.); Compl. at ¶ 192 (Plaintiff N.S. denied entry to her appropriate grade level

without providing appropriate documentation to her parent and without offering an

evaluation to make education with same-age peers possible); Compl. at ¶ 215

(Plaintiff J.W. experienced bullying with no intervention by his teachers, who in

fact engaged in targeted bullying tactics themselves); Compl. at ¶ 243 (Plaintiff

C.D. was placed in a self-contained classroom for the cognitively impaired despite

this being inappropriate for his Speech and Language Impairment); Compl. at ¶¶

249, 250 (Plaintiff C.D. has been unfairly disciplined, even when students who

have attacked him are not disciplined); Compl. at ¶¶ 272, 301 (Plaintiffs D.K. and


23

O.N. have been excluded from field trips due to behavioral manifestations of

disability). These detailed allegations, when viewed as a whole, sufficiently

demonstrate at the pleadings stage a systemic pattern of failing to provide students

with disabilities the same educational opportunities and benefits made available to

their non-disabled peers. This systemic failure to comply with the most

fundamental mandates in federal law – the requirement of equal educational

access and opportunity for students with disabilities – can only be remedied

through an overhaul of Defendants’ policies and practices to ensure this

discrimination is rooted out in all of the facets Flint’s educational program.

Finally, Defendant MDE claims that Plaintiffs’ claim of systemic violations

in FCS must be dismissed because they do not specifically allege similar oversight

failures by MDE in each of the other fifty-five school districts in Michigan. See

MDE Brief at 30 – 31. MDE cites no legal support for this bizarre argument, and

there is none. The rationale behind the systemic violations doctrine is that

systemic relief is not an administrative remedy, so pursuing such would be futile.

This is no less true for a state-level defendant than it is for the school district, even

if the systemic relief sought is not statewide. Thus, systemic failures in one school

district are sufficient to excuse exhaustion when exhaustion would be futile. See

e.g., M.A. v. State Operated Sch. Dist. of Newark, 344 F.3d 335, 343 (3d Cir. 2003)

(exhaustion not required where allegations of “a widespread systemic breakdown


24

of the provision of free, appropriate public education . . . could not be addressed

sufficiently in administrative proceedings.”); Jose P. v. Ambach, 669 F.2d 865,

869-70 (2d Cir. 1982) (exhaustion futile where individualized administrative

remedies “could well be found inappropriate” to resolve “complex and

polycentric” systemic placement issues “more appropriate for resolution by a

master, taking a structural approach[.]”); New Mexico Ass'n for Retarded Citizens

v. N.M., 678 F.2d 847, 851 (10th Cir. 1982) (exhaustion excused where Plaintiffs

alleged “that the entire special education service system offered by the State is

infirm”); A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 263 (E.D.N.Y. 2002) (IDEA

exhaustion futile where Plaintiffs alleged systemic failure within a school district);

Hendricks v. Gilhool, 709 F. Supp. 1362, 1367 (E.D. Pa. 1989) (IDEA exhaustion

futile under “systemic violation” exception).

B. Exhaustion Is Not Required Because an Emergency Situation

Exists.

In addition to futility, courts have recognized an exception to exhaustion

when an emergency situation arises such that the plaintiff will suffer severe and

irreparable harm if exhaustion is not excused. See Coleman v. Newburgh, 503 F.3d.

198; Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000); Komninos v. Upper Saddle

River Bd. Of Educ., 13 F.3d 775 (3d Cir. 1994); T.H. v. Cincinnati Pub. Sch. Dist.

Bd. Of Ed, 2014 U.S. Dist. LEXIS 87698 (S.D. Ohio June 27, 2014) (Ex.4). This

exception applies here because the Flint water crisis is an ongoing emergency


25

which is certain to cause Plaintiffs severe and irreparable harm if they are not able

to seek relief now.

The emergency exception to exhaustion finds its roots in the legislative

history of the IDEA. See Coleman, 509 F.3d at 206. A House Report states that

the futility exception to exhaustion includes complaints that “an emergency

situation exists (e.g., the failure to take immediate action will adversely affect a

child's mental or physical health).” See H.R. Rep. No. 296, 99th Cong., 1st Sess. 7

(1985). For the emergency exception to apply, it must be demonstrated that a child

“will suffer serious and irreversible mental or physical damage.” See Komninos, 13

F.3d at 779.

Here, Plaintiffs’ allegations regarding the Flint water satisfies these

requirements. As fully detailed in the Complaint, scientific research confirms that

lead is a potent neurotoxin, childhood lead poisoning has a negative impact on

developmental and biological processes, and no level of lead exposure is safe or

free from deleterious and irreversible health outcomes. Compl. at ¶¶ 62-63. By

exposing children to lead-contaminated water, and failing to immediately identify

those with disabilities and provide them with special education interventions,

Defendants have created a situation that will lead to long lasting, irreversible

negative consequences. Compl. at ¶ 70 (“Documented risks of learning, behavioral,

and cognitive problems are present for all potentially exposed children in Flint.”);


26

Compl. at ¶ 72 (quoting FCS Superintendent Bilal Tawwab “the effects of lead

poisoning on our children cannot be fully reversed . . . [t]he Flint Community

Schools will need additional support in the form of expanded special education

services.”); MDE Br. at 2 (acknowledging that there will be Flint schoolchildren

“who end up needing special services as a direct result of the Flint water crisis”).

As the Complaint states, “[l]ead, without an aggressive, comprehensive and

proactive response” will significantly reduce the prospects of Flint children for

success in school, a fundamental building block for a healthy and productive life.

Compl. at ¶ 5; see also Compl. at ¶ 8 (“It is impossible to overstate the resounding

effects of the failure to provide meaningful education opportunities, and to provide

them now.”)(emphasis added). Defendants’ ongoing failure to provide early

interventions and special education programs and supports to Flint children in the

wake of the water crisis fits squarely with the emergency exception.

Plaintiffs Have Standing to Sue for Violations of IDEA, Section 504 and II.

the ADA.

MDE asserts that Plaintiffs lack standing to challenge MDE’s violations of

its obligations under IDEA, Section 504, and the ADA. MDE’s contention

fundamentally mischaracterizes the role and responsibilities of the state education

agency (“SEA”) in effectuating the rights of students with both diagnosed, and as

yet undetected, disabilities. Contrary to MDE’s assertions, the SEA is not a

powerless bystander to the illegal actions of the local education agency (“LEA”),


27

but rather has specific and direct responsibility under federal law for ensuring the

provision of special education services in the State of Michigan and compliance of

each LEA with special education and anti-discrimination laws. Because MDE’s

failure to fulfill this essential role violates Plaintiffs’ rights under the IDEA,

Section 504 and the ADA, Plaintiffs have standing to bring their Complaint.

It is well established that there are three elements of standing required

pursuant to Article III of the U.S. Constitution: injury-in-fact, causation and

redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In

determining whether Plaintiffs have met these standing elements, the court “‘must

accept as true all material allegations of the complaint, and must construe the

complaint in favor of the complaining party.’” Parsons v. U.S. Dep't of Justice,

801 F.3d 701, 710 (6th Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 501

(1975)). As explained below, each element of standing is satisfied in the

Complaint before this Court: Plaintiffs plainly allege injury under federal special

education and anti-discrimination statutes; these injuries are fairly traceable to the

MDE; and the injuries are capable of redress through judicial relief.

A. Plaintiffs Allege Injury-in-Fact from the MDE’s Failure to Fulfill

its Obligations Under the IDEA, Section 504 and the ADA.

To establish injury-in-fact, a plaintiff must allege an “invasion of a legally

protected interest.” Defs.s of Wildlife, 504 U.S. at 560. The “injury required by

Art. III may exist solely by virtue of statutes creating legal rights, the invasion of


28

which creates standing.” Warth, 422 U.S. at 500 (internal quotation marks

omitted). Plaintiffs’ Complaint alleges systemic violations of the rights of Flint

students under federal statutes, namely the IDEA, Section 504 and the ADA.

SEAs are obligated to ensure the provision of special 1.

education in compliance with IDEA, Section 504 and the

ADA.

The State of Michigan, through its education agency – the MDE – has the

essential responsibility for ensuring that special education is provided to all

students within its jurisdiction who require such services in conformance with the

mandates of federal law. Under IDEA, the SEA is:

responsible for ensuring that . . . all educational programs for children with

disabilities in the State, including all such programs administered by any

other State agency or local agency-- (I) are under the general supervision of

individuals in the State who are responsible for educational programs for

children with disabilities; and (II) meet the educational standards of the State

educational agency.

20 U.S.C. § 1412(a)(11)(A). Additionally, the State must “ensure that any State

rules, regulations, and policies relating to this chapter conform to the purposes of”

the IDEA. 20 U.S.C. § 1407(a)(1).

The IDEA also enumerates the specific responsibilities of the SEA in

ensuring appropriate identification, evaluation, and provision of services and due

process safeguards to students with disabilities. To qualify for federal assistance,

the State must “ha[ve] in effect policies and procedures to ensure that the State

meets” conditions including:


29

“A free appropriate public education is available to all children with

disabilities residing in the State . . . including children with disabilities who

have been suspended or expelled from school.”

“All children with disabilities residing in the State . . . who are in need of

special education and related services, are identified, located, and evaluated

and a practical method is developed and implemented to determine which

children with disabilities are currently receiving needed special education

and related services.”

“An individualized education program, or an individualized family service

plan [for infants or toddlers] . . . is developed, reviewed, and revised for each

child with a disability.”

“To the maximum extent appropriate, children with disabilities . . . are

educated with children who are not disabled,” i.e., in the least restrictive

environment.

“Children with disabilities and their parents are afforded the procedural

safeguards required by section 1415” of IDEA, which includes safeguards

pertaining to discipline.

20 U.S.C. §§ 1412(a)(1)(A), (3)(A), (4), (5)(A), (6)(A).4 In turn, the IDEA

provides that an LEA is eligible for financial assistance only if it “provides

assurances” to the SEA that “in providing for the education of children with

disabilities within its jurisdiction, [the LEA] has in effect policies, procedures, and

programs that are consistent with the State policies and procedures established

under section 1412.” 20 U.S.C. 1413(a)(1). Additionally, the IDEA provides for

4 Additionally, the “State must ensure that each public agency takes steps to

ensure that its children with disabilities have available to them the variety of

educational programs and services available to nondisabled children in the area

served by the agency, including art, music, industrial arts, consumer and

homemaking education, and vocational education.” 34 C.F.R. § 300.110; see also

20 U.S.C. § 1412(a)(2), § 1413(a)(1).


30

“[d]irect services by the State educational agency,” stating that the SEA “shall use

the payments that would otherwise have been available to a local educational

agency or to a State agency to provide special education and related services

directly to children with disabilities” if that LEA or State agency is unable or

unwilling to do so. 20 U.S.C. § 1413(g)(1).

Furthermore, the IDEA obligates SEAs to monitor compliance with IDEA

and to act when LEAs fail to meet their obligations under the statute and its

regulations. Where an LEA engages in illegal conduct and practices, SEAs are not

mere passive observers, but rather obligated to implement specified monitoring

protocols and utilize specific enforcement tools. Under IDEA’s implementing

regulations, the State must “[m]onitor the implementation” of the regulatory

mandates and “[m]ake determinations annually about the performance of each

LEA.” 34 C.F.R. § 300.600(a)(1)-(2). In completing its monitoring duties, the

State must use “quantifiable indicators” as well as “such qualitative indicators as

are needed to adequately measure performance” in “priority areas” including the

provision of FAPE in the least restrictive environment and state exercise of

supervision of various IDEA requirements. 34 C.F.R. § 300.600(d). The State is

also obligated to “[r]eport annually on the performance of the State and of each

LEA.” Id. § 300.600(a)(4).

IDEA provides concrete tools that the SEA must use to ensure LEA


31

compliance and proper functioning of the State’s special education system. These

include the withholding of funds to noncompliant LEAs and provision of support

in the form of improvement plans and technical assistance. 34 C.F.R. §

300.600(a)(3) (State is required to enforce IDEA’s mandates “using appropriate

enforcement mechanisms, which must include, if applicable, the enforcement

mechanisms identified in § 300.604(a)(1) (technical assistance), (a)(3) (conditions

on funding of an LEA), (b)(2)(i) (a corrective action plan or improvement plan),

(b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2)

(withholding funds, in whole or in part, by the SEA)” (emphasis added)). The

SEA also “examines data . . . to determine if significant discrepancies are

occurring in the rate of long-term suspensions and expulsions of children with

disabilities” among LEAs or compared to nondisabled students within LEAs; if

such discrepancies are found, the SEA must act by “review[ing] and, if

appropriate, revis[ing] (or requir[ing] the affected [SEA or LEA] to revise) its

policies, procedures, and practices relating to the development and implementation

of IEPs, the use of positive behavioral interventions and supports, and procedural

safeguards.” 20 U.S.C. §1412(a)(22).

Section 504 and the ADA also place obligations directly on SEAs. Each of

these statutes prohibits SEAs and LEAs from discriminating against individuals

with disabilities, meaning students with disabilities cannot be excluded from


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participating in or receiving the benefits of a school’s services, programs, or

activities. Section 504 and the ADA require provision of reasonable

accommodations and modifications designed to provide meaningful access to

educational benefits, or as necessary to avoid discrimination based on disability.

34 C.F.R. § 104.12; 34 C.F.R. § 104.44; 28 C.F.R. § 35.130(b)(7).

Both LEAs and SEAs are subject to Section 504 and Title II of the ADA.

Section 504 provides that “[n]o otherwise qualified individual with a disability . . .

shall, solely by reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance or under any program or activity

conducted by any Executive agency.” 29 U.S.C. § 794(a). According to the

statute, the operations of the MDE qualify as a “program or activity” covered by

Section 504. 29 U.S.C. § 794(b). Similarly, Title II of the ADA mandates that “no

qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. MDE is a “public entity” under Title II and thus

subject to its mandates. 42 U.S.C. § 12131(1).

Plaintiffs allege concrete and substantive injuries from 2.

MDE’s failure to fulfill its enumerated duties under IDEA,

Section 504 and the ADA


33

The MDE asserts that Plaintiffs’ allegations against MDE “are insufficient to

establish standing because they are purely procedural in nature” and too

generalized to warrant judicial interference. MDE Br. at 33-34. A plain reading of

the Complaint, however, demonstrates that Plaintiffs allege numerous specific

violations of IDEA, Section 504, and the ADA, and detail the substantive injuries-

in-fact resulting from such violations. These allegations are more than sufficient to

satisfy the standing requirement on a motion to dismiss. “At the pleading stage,

general factual allegations of injury resulting from the defendant's conduct may

suffice, for on a motion to dismiss [the court] ‘presum[es] that general allegations

embrace those specific facts that are necessary to support the claim.’” Defs.s of

Wildlife, 504 U.S. at 561 (quoting Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 889

(1990)). This Court should reject MDE’s attempt to mischaracterize its own

responsibilities under these laws and, correspondingly, the agency’s attempt to

evade judicial review of its failures to meet those responsibilities to Plaintiffs in the

Flint public schools.

a. Injuries under IDEA

Plaintiffs’ Complaint sets forth, in detail, MDE’s specific violations

resulting in injuries to Plaintiffs under the IDEA. The Complaint explicitly

identifies the specific areas in which MDE’s failures result in violations of the core

mandates of IDEA:


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MDE, the State agency charged with conducting oversight and ensuring

FCS’s and GISD’s compliance with IDEA in the provision of special

education services, has engaged in an ongoing pattern and practice of

systemically failing to provide FCS and GISD with sufficient funding and

support to enable FCS and GISD to provide: early screening and

intervention services for children aged 3-4; evaluations for all children at

risk of a disability in fulfillment of the child find mandate; special education

services compliant with students’ individualized education programs in the

least restrictive environment; and procedural safeguards to prevent the use of

unduly harsh disciplinary measures for disability-related behaviors, as

required by IDEA.

Compl. at ¶ 16. The Complaint also lists, as an issue common to the class,

“[w]hether Defendants MDE and GISD additionally violated Plaintiffs’ rights

under the IDEA, Section 504, and Title II” by “failing appropriately to monitor and

enforce Defendant FCS’s timely identification of, evaluation of, and provision of,

legally mandated special education and related services to, children with known or

suspected disabilities who require or may require such services.” Compl. at ¶ 41.

MDE’s assertion that Plaintiffs “fail to specify” the discrete deficiencies in

MDE’s monitoring and oversight actions mischaracterizes Plaintiffs’ burden to

allege injury-in fact. MDE Br. at 34. Plaintiffs have clearly met that burden by

detailing the injuries to their protected interests under IDEA. Plaintiffs further

allege that MDE is obligated to “ensure that all LEAs in Michigan, including

Defendants FCS and GISD, implement and comply with the . . . specific

provisions of the IDEA,” to prevent and ameliorate such injuries. Compl. at ¶ 50;

see also Compl. at ¶¶ 51-54 (detailed summary of requirements in the areas of


35

child find, evaluation, design and implementation of IEPs, and disciplinary

procedures for students with disabilities). As explained below, Plaintiffs have

demonstrated that these injuries are fairly traceable to MDE’s failure to perform its

prescribed statutory duties. To satisfy injury-in-fact, Plaintiffs are not obligated on

a motion to dismiss for lack of standing to delineate a full and complete

compendium of the agency’s failures, as the MDE suggests.

MDE further contends that its oversight and monitoring failures are mere

“procedural” violations not actionable under IDEA.5 This contention rests upon a

gross misreading of the case law precedent distinguishing substantive and

procedural violations under the statute and ignores the grave consequences of

MDE’s failure to ensure provision of crucial special education services to Flint

students.

First, MDE readily concedes, citing D.S. v. Bayonne Bd. of Educ., 602 F.3d

553, 565 (3d Cir. 2010), that a procedural violation of IDEA is actionable “if it

results in a loss of educational opportunity . . . or causes a deprivation of

educational benefits.” (Citations omitted). MDE Br. at 32-33. It is also clear that

5 The MDE asserts that Plaintiffs recognize it is the responsibility of the

MDE to provide oversight to school districts, as separate and distinct from the

FCS’s responsibility to provide special education programs and services as an

LEA. Plaintiffs do not concede that MDE’s role is limited to LEA oversight, as

demonstrated by the detailed contentions of MDE’s violation of its numerous

responsibilities under IDEA and other statutes. Furthermore, the plain text of

IDEA makes clear that MDE’s responsibilities are much broader than as

characterized by the agency in its motion.


36

plaintiffs can establish standing if they “suffer a concrete injury as a result of the

disregarded procedural requirement.” Parsons, 801 F.3d at 712 (citation omitted).

Plaintiffs’ Complaint contains specific allegations that MDE’s failure to ensure

Plaintiffs’ LEAs identify, evaluate and provide services to students with

disabilities, and avoid misuse of disciplinary policies excluding students from

school, has resulted in a substantive loss of educational opportunity and severe

deprivation of educational benefits to Flint students attending FCS and GISD

schools. Moreover, as the court in D.S. explicitly held, “[t]he Supreme Court has

made clear that the IDEA’s ‘procedural safeguards cannot be gainsaid,’ as

‘Congress placed every bit as much emphasis upon compliance with procedures

giving parents and guardians a large measure of participation at every stage of the

administrative process, as it did upon the measurement of the resulting IEP against

a substantive standard.’” D.S., 602 F.3d at 565 (quoting Bd. of Educ. v.

Rowley, 458 U.S. 176, 205–06 (1982)). Thus, even accepting MDE’s argument

that its violations should be viewed as procedural, those violations are, without

question, actionable under IDEA.

Second, MDE’s violations, as set forth in the Complaint, are not only

procedural. MDE has ultimate responsibility for ensuring that all aspects of the

rights of Flint students to special education are fully protected and properly

effectuated in conformance with IDEA’s requirements. See e.g., Ullmo v. Gilmour


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Acad., 273 F.3d 671, 679 (6th Cir. 2001) (pursuant to 20 U.S.C. § 1412(a)(11),

SEA is “the primary authority for establishing a state’s compliance with the

IDEA”). As in D.S., Plaintiffs have standing to enforce procedural violations of

IDEA when LEAs fail to adhere to prescribed timelines in responding to parent

requests for evaluations, the preparation and completion of IEPs, and similar

violations. See e.g., D.S., 602 F.3d at 565 (noting LEAs “fail[ure] to make timely

responses… present[s] a procedural question”). Beyond those essential procedural

requirements, the SEA also has oversight responsibilities to ensure effectuation of

IDEA’s substantive provisions. See Pachl v. Seagren, 453 F.3d 1064, 1070 (8th

Cir. 2006) (SEA “may be responsible for violations of the IDEA when the state

agency in some way fail[s] to comply with its duty to assure that the IDEA’s

substantive requirements are implemented,” including “systemic violation” of the

state’s IDEA responsibilities) (internal quotation marks omitted).6 Plaintiffs’

Complaint contains detailed contentions of substantive violations of their rights

under IDEA, including the failure under child find to locate and evaluate students

with disabilities, Compl. at ¶¶ 41, 350, 353, 365; failure to provide FAPE in the

least restrictive environment, Compl. at ¶¶371, 388; and use of inappropriate

disciplinary measures, Compl. at ¶ 381. The fact that the IDEA provides detailed

6 MDE also reasserts that Plaintiffs lack standing because they failed to

exhaust the IDEA’s administrative process As Plaintiffs explain, see Section I

supra at 13, this assertion lacks merit.


38

protocols that SEAs must follow in fulfilling their monitoring and enforcement

duties, in no way renders the SEA’s role as simply procedural and beyond judicial

review.

Indeed, the Sixth Circuit has explicitly recognized that “[u]nder the IDEA,

the responsibility for ensuring that disabled students receive a free appropriate

public education lies with the state educational agency.” Ullmo, 273 F.3d at 679.

Courts across the country have likewise recognized that the SEA is ultimately

responsible for ensuring its LEAs provide special education programs and services

in full compliance with IDEA’s provisions. See e.g., Ellenberg v. N.M. Military

Inst., 478 F.3d 1262, 1269 (10th Cir. 2007) (“Responsibility for implementing the

IDEA and policing IDEA compliance rests with the states, subject to the IDEA’s

limited but specific structural framework. Each . . . (“SEA”) must enact

procedures and policies to implement the IDEA, and ensure both state and local

compliance with the Act.” (internal citations omitted)); M.A. v. State-Operated

Sch. Dist. of City of Newark, 344 F.3d 335, 340 (3d Cir. 2003) (“[T]he

participating state retains primary responsibility for ensuring compliance with the

IDEA and for administering educational programs for disabled children.”).

b. Injuries under Section 504 and ADA

In addition to the allegations summarized above, Plaintiffs allege that

Defendants have “discriminated against Plaintiffs and similarly situated children


39

by denying them access to essential services and programming that is available to

non-disabled students solely on account of their disabilities,” in violation of

Section 504 and the ADA. Compl. at ¶¶ 386, 390. Furthermore, Plaintiffs contend

that Defendants have “failed to provide Plaintiffs and similarly situated children

with a FAPE and/or reasonable accommodations due to their disability-related

behaviors,” in violation of their mandated duties under Section 504. Compl. at ¶

387. Contrary to MDE’s assertions, the Complaint proffers detailed contentions

about the various ways in which Plaintiff students have been excluded from

educational opportunities through lack of appropriate educational services and

accommodations, and inappropriate school discipline, injuries cognizable under

Section 504 and the ADA.

The MDE asserts that Plaintiffs do not properly allege actionable injuries

under their Section 504 and ADA claims because it is unknown whether plaintiffs

have a disability or are eligible for special education, making their injury too

hypothetical or generalized for judicial intervention. First, MDE’s argument

ignores the fact that the Plaintiffs – and their proposed class – include children who

“currently have” disabilities. Complaint ¶ 10; see also Complaint ¶ 14 (“Of the

5,426 students attending FCS schools, 907, or 16.7%,15 are classified with

qualifying disabilities and are consequently eligible for special education and

related services.”). MDE does not challenge Plaintiffs’ allegations of injury to


40

FCS and GISD students with identified disabilities under Section 504 and the

ADA.

Second, MDE attempts to use its own failure to ensure adequate

identification and evaluation of students with suspected disabilities to insulate it

from review of its violations under Section 504 and the ADA. The Complaint is

replete with detailed factual contentions concerning children who are at risk of

disability, may qualify for special education services, and will need

accommodations, including all children in Flint who have been exposed to elevated

levels of lead over an extended timeframe from the contaminated water supply.

Section 504 and the ADA require provision of reasonable accommodations and

modifications designed to provide meaningful access to educational benefits, 34

C.F.R. § 104.12; 34 C.F.R. § 104.44; 28 C.F.R. § 35.130(b)(7), and Section 504

also requires that students with disabilities receive a FAPE including the provision

of regular or special education and related aides and services, 29 U.S.C. § 794; 34

C.F.R. § 104.33. The fact that MDE has failed to fulfill its obligation to ensure

that all children needing such accommodations and services are identified as

requiring them, does not preclude such students from seeking the services they are

due under Section 504 and the ADA.

B. Plaintiffs’ Injuries are Fairly Traceable to MDE’s Failure to

Fulfill its Duties Under Special Education and Anti-

Discrimination Laws.


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The causation prong of Article III standing requires only that a plaintiff’s

injuries be “fairly traceable” to the conduct of a defendant. Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 103 (1998). The defendant’s conduct need not be

the proximate cause of the injuries alleged. Lexmark Itn’l, Inc. v. Static Control

Components, Inc., 572 U.S. __, 134 S. Ct. 1377, 1391 n.6 (2014). MDE argues

that Plaintiffs’ claims fail to satisfy the causation requirement because MDE’s

failures in monitoring FCS and GISD compliance with IDEA, Section 504 and the

ADA are too “indirect” to satisfy causation. MDE Mot. to Dismiss at 35. As a

threshold matter, MDE attempts to impose a standard of causation that is plainly

erroneous. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

261 (1977) (“[t]he injury may be indirect”); Parsons, 801 F.3d at 713 (“the fact

that an injury is indirect does not destroy standing”). MDE also disregards

Plaintiffs’ allegations of injury caused specifically by MDE’s numerous failures to

fulfill its statutory obligations to ensure non-discrimination and provision of

special education services.

The position of FCS and GISD as front-line providers of most special

education services in no way means that LEAs are the only legally responsible

actor under IDEA, Section 504 and the ADA. In fact, MDE’s ultimate

responsibility to ensure compliance with IDEA and the provision of special

education services by the LEAs under its jurisdiction – i.e., the backstop to


42

safeguard the rights to special education of all Michigan students – renders MDE’s

failure to fulfill those responsibilities as a fairly traceable, if not direct cause, of

Plaintiffs’ injuries. See Charlene R. v. Solomon Charter Sch., 63 F. Supp. 3d 510,

516 (E.D. Pa. 2014) (IDEA text and legislative intent “clearly signal that the SEA

is to bear primary responsibility for ensuring that every child receives the FAPE

that he or she is entitled to under the IDEA. While the SEA ordinarily delegates

actual provision of this education to LEAs, the SEA by statute must step in where a

LEA cannot or will not provide a child with a FAPE.”); see also 20 U.S.C. §

1413(g) (provision of services directly by SEA). Consequently, violations by FCS

and GISD of their legal obligations under IDEA, Section 504 and the ADA do not

– and cannot – absolve the MDE of its bedrock responsibility to ensure the rights

of Flint students guaranteed by those laws are effectuated and fully protected. See

Parsons, 801 F.3d at 714 (“courts have held that the fact that a defendant was one

of multiple contributors to a plaintiff’s injuries does not defeat causation” for

purposes of standing); Ullmo, 273 F.3d at 679 (SEA is “the primary authority for

establishing a state’s compliance with the IDEA”).

Even more telling, MDE’s argument, if accepted, would insulate the agency

from judicial review of the exercise of its legally mandated duties to ensure non-

discrimination on the basis of disability, and the provision of special education, for

Michigan children. MDE offers no justification for its extraordinary contention


43

that it is shielded from review and redress by the courts where plaintiffs have pled

specific and concrete allegations of SEA noncompliance with special education

and anti-discrimination laws. This contention also flies in the face of established

precedent in this and other Circuits affording plaintiffs standing to seek

adjudication and remedies for violations of SEA duties under special education and

anti-discrimination laws. See e.g., Ullmo, 273 F.3d at 679 (SEA “may be held

liable for the failure to provide a free appropriate public education” (internal

quotations omitted)); Gadsby v. Grasmick, 109 F.3d 940, 953 (4th Cir. 1997)

(“[T]he SEA is ultimately responsible for the provision of a free appropriate public

education to all of its students and may be held liable for the state’s failure to

assure compliance with IDEA.”). see also B.C. v. Mount Vernon Sch. Dist., No.

14-3603-CV, 2016 WL 4945421, at *2 (2d Cir. Sept. 16, 2016) (unpublished)

(Ex.5) (plaintiff parents had standing to sue both New York State Education

Department and school district under IDEA, Section 504, and ADA).

C. Plaintiffs’ Injuries will be Redressed by the Relief Requested in

the Complaint.

Finally, the redressability element of standing is satisfied where there is “a

likelihood that the requested relief will redress the alleged injury.” Steel, 523 U.S.

at 103. The “relevant standard” for redressability “is likelihood,” Parsons, 801

F.3d at 715, and thus a plaintiff “must show only that a favorable decision is likely

to redress his injury, not that a favorable decision will inevitably redress his


https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998114835&pubNum=506&originatingDoc=Id9ed44ec79b411d98c82a53fc8ac8757&refType=RP&fi=co_pp_sp_506_784&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_pp_sp_506_784


https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1997074506&pubNum=506&originatingDoc=Ic731db2e317a11e1aa95d4e04082c730&refType=RP&fi=co_pp_sp_506_953&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_506_953

44

injury,” Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994) (emphases in

original). Furthermore, even a “partial redress” of plaintiffs’ injuries can “satisfy

the standing requirement.” Parsons, 801 F.3d at 716. In their Complaint,

Plaintiffs request declaratory and injunctive relief that would remediate their

injuries by compelling Defendants, including the MDE, to, inter alia, fulfill their

obligations to identify and evaluate all students who require special education via

methods including enhanced screenings for children ages 3-5; provide them with a

FAPE by ensuring that IEPs are created and implemented; and institute systems

and training to ensure proper disciplinary procedures. See Compl. at ¶ 395. Thus,

Plaintiffs clearly satisfy the standing requirement of redressability.

MDE nonetheless asserts that Plaintiffs have not alleged a redressable injury

because their requested relief is dependent on other actors, namely the LEAs under

MDE’s jurisdiction. This argument should be flatly rejected because it contradicts

judicial precedent and implies that any injury caused by more than one defendant is

not redressable. Since MDE has ultimate responsibility for ensuring FCS and

GISD compliance with IDEA, Section 504 and the ADA, an order requiring MDE

to act in accordance with this responsibility is likely to at least partially redress

Plaintiffs’ injuries. See Parsons, 801 F.3d at 716-17.

Additionally, by joining both the SEA and the Flint LEAs, Plaintiffs’

Complaint provides this Court the ability to redress all violations of law causing


45

Plaintiffs’ injuries. While redressability may be more difficult to establish when it

depends upon “‘choices made by independent actors not before the courts,’” Young

Am.'s Found. v. Gates, 573 F.3d 797, 800 (D.C. Cir. 2009) (quoting Defs.s of

Wildlife, 504 U.S. at 562), that obstacle does not apply to the instant case, both

because FCS and GISD are not entirely independent (they are accountable to

MDE), and are, in fact, before this Court as named defendants.7 As the Sixth

Circuit has held, “the language and structure of [the] IDEA suggest that either or

both entities [the SEA or LEA] may be held liable for the failure to provide a free

appropriate public education.” Ullmo, 273 F.3d at 679 (internal quotations

omitted) (alterations in original) (emphasis added); see also Mount Vernon Sch.

Dist., 2016 WL 4945421, at *2 (unpublished) (plaintiffs had standing to sue both

SEA and LEA under IDEA, Section 504, and ADA).

In sum, the inter-agency responsibilities established under federal special

education and anti-discrimination laws and the case law interpreting that legal

framework demonstrate that, as an SEA, the MDE has specific and concrete

obligations under IDEA, Section 504 and the ADA. Plaintiffs’ Complaint details

the injuries-in-fact suffered by Plaintiffs as a result of MDE’s violations of its

7 MDE also makes passing reference to the parents of students as another

“actor” upon which relief depends, MDE Br. at 35, 37, yet provides absolutely no

explanation as to why relief would be hindered by the actions of parents. Parents

in this case have chosen to bring a lawsuit against MDE and the relevant LEAs

precisely because they seek redress of their children’s injuries and both parties are

necessary to provide the requested relief.



46

statutory obligations, including the failure to 1) appropriately identify and evaluate

students with disabilities; 2) provide special education services in the least

restrictive environment; 3) provide appropriate procedural safeguards regarding

school discipline; and 4) prevent discrimination against students on the basis of

disability. MDE’s failure to fulfill its duties under these laws has caused, and is

continuing to cause, injuries-in-fact to Plaintiffs in the Flint schools. Granting

Plaintiffs’ requested relief would remedy these violations. Accordingly, Plaintiffs

have standing to bring these claims against MDE for this Court’s adjudication and

determination.

D. Plaintiffs Also Have Standing to Sue FCS for Failure to Conduct

Appropriate Screenings.

In addition to MDE’s standing argument, FCS also contends that Plaintiffs

lack standing specifically with regard to their “declaratory and injunctive request

seeking hearing, vision, and lead blood testing,” FCS Br. at 33, because these

screenings are already offered by the county health department, a different public

entity. Under the elements of standing set forth above, this contention is without

merit and should be rejected by this Court.

Federal law imposes “child find” obligations on FCS, in addition to the other

Defendants, to identify and evaluate all children who require special education and

related services. E.g., 20 U.S.C. §§ 1412(a)(3)(A), U.S.C. 1413(a)(1), 1414(a)(1).

Plaintiffs’ Complaint alleges injury in the form of not receiving appropriate


47

screenings to identify and evaluate the needs of all Flint children with qualifying

disabilities, which constitutes an invasion of the legally protected interests cited

above. This injury is also fairly traceable to FCS because FCS fails to ensure the

screenings are conducted, in violation of its statutory child find obligations.

Lastly, redressability is satisfied because Plaintiffs’ requested relief—an order

requiring FCS to conduct the screenings, see Compl. at ¶ 395—would remedy

Plaintiffs’ injury.

FCS’ contention that Plaintiffs lack standing because vision and health

screenings may be available through the county health department is like a

restaurant without wheelchair access arguing that would-be customers lack

standing because they can buy food at the grocery store. Plaintiffs have alleged

that screenings are not performed on children who should receive them. See

Compl. at ¶¶ 116, 134, 232, 241, 296, 317, 340); Parsons, 801 F.3d at 710 (in

“ruling on a motion to dismiss for want of standing,” a court “must accept as true

all material allegations of the complaint” (internal quotation marks omitted)).8 The

fact that another agency may offer screenings that are a necessary part of

identifying and evaluating students with disabilities in no way relieves FCS of its 8 The existence of “walk-in blood lead screening” as asserted by FCS, FCS Br. at

32, is not equivalent to Plaintiffs’ requested relief of a declaratory judgment that

“IDEA gives rise to an affirmative duty to conduct testing and enhanced screening

of all children ages 3-5 and all those attending, or who may attend, FCS for

elevated blood levels and a determination as to whether the child is eligible for

special education services,” Complaint ¶ 395.


48

affirmative child find obligations or diminishes Plaintiffs’ ability to sue FCS to

vindicate rights guaranteed by federal law. Thus, Plaintiffs have standing to sue

FCS for the relief at issue.

The Eleventh Amendment Does Not Bar Plaintiffs’ Claims Against III.

MDE.

Plaintiffs’ ADA Title II claim against MDE is not barred by the Eleventh

Amendment. Although the Supreme Court has not yet decided whether Congress

validly abrogated state sovereign immunity in Title II of the ADA, Congress was

“unequivocal” in its intent to abrogate sovereign immunity for all claims under the

ADA, see U.S. v. Ga., 546 U.S. 151, 154 (2006) (citing 42 U.S.C. § 12202), and

every Circuit Court of Appeals to consider the question in the context of public

education has held that such abrogation was constitutionally valid. See Bowers v.

Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 556 (3d Cir. 2007) (holding that state

sovereign immunity was validly abrogated with respect to a Title II claim

involving a disabled student’s access to a sports program at a public institution of

higher education); Toledo v. Sanchez, 454 F.3d 24, 40 (1st Cir. 2006) (same

holding with respect to a claim for failure to reasonably accommodate a disabled

university student); Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474 (4th Cir. 2005) (same for a Title II claim involving denial of

accommodations for college student with a medical condition); Assn’n for

Disabled Ams. v. Fla. Int’l Univ., 405 F.3d 954, 959 (11th Cir. 2005) (same for a


49

Title II claim involving denial of sign language interpreters for a college student);

see also Dean v. Univ. at Buffalo School of Medicine and Biomedical Sciences,

804 F.3d 178, 195 n. 9 (2d Cir. 2015) (declining to rule on this issue but noting that

the other circuits to do so have held that abrogation is valid).

The Sixth Circuit has not specifically addressed Title II abrogation in the

context of public education claims, but district courts within the Sixth Circuit have

embraced the consensus of other circuits. See e.g., Frank v. Univ. of Toledo, 621 F.

Supp. 2d 475, 481 (N.D. Ohio 2007) (holding that Congress validly abrogated state

sovereign immunity with respect to ADA Title II claim against state university).

Although most public education Title II claims have arisen in the context of higher

education, at least one district court in this circuit has approved the abrogation of

sovereign immunity in other public education contexts as well. In W.H. v. Tenn.

Dep’t of Educ., 2016 U.S. Dist. LEXIS 7206 (M.D. Tenn. Jan. 20, 2016), the court

was “swayed by these other circuits’ holdings” and found that “there is no reason

to differentiate the analysis with respect to the right to public primary education.”

Id. at *29-30. This Court should reach the same conclusion here.

MDE offers no case law to support its contention that Eleventh Amendment

immunity bars Title II claims. Instead, MDE argues that Plaintiffs fail to plead

sufficient facts to state a claim under Title II. See MDE Br. at 40. But this is not

really a sovereign immunity argument so much as a question of whether Plaintiffs


50

have stated a claim, and since Plaintiffs have sufficiently pleaded systemic Title II

violations, see Part IV, Section B infra at 58, this argument fails.

For this reason, Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016), is easily

distinguishable. Babcock held that a Title II suit was barred because it alleged

exclusion from “access to a specific facility” instead of the “public service,

program, or activity” covered by Title II. Id. at 535. Because the plaintiff “failed to

identify conduct that violates the ADA,” her claim failed. Id. at 539. In other

words, Babcock never reached the question of whether, had the plaintiff stated a

Title II claim, state sovereign immunity would have barred it.

In this case, by contrast, Plaintiffs’ ADA claim against MDE is based on

discrimination in and exclusion from educational services, programs or activities,

which are undeniably covered by Title II, not the alleged physical denial of access

to facilities at issue in Babcock. Based on Plaintiffs’ well-pleaded allegations of

MDE’s Title II violations, this court should hold that “with respect to the right to

public primary education . . ., [42 U.S.C. §] 12202 validly applies to abrogate . . .

Eleventh Amendment immunity.” W.H., 2016 U.S. Dist. LEXIS 7206, at *30.

Finally, if this Court nevertheless concludes that Title II of the ADA does

not validly abrogate state sovereign immunity, Plaintiffs should be granted leave to

amend their Complaint to add Brian J. Whiston, the state superintendent of public


51

instruction, as an official-capacity defendant under the Ex Parte Young doctrine.9

See Carten v. Kent State Univ., 282 F.3d 391, 395-97 (6th Cir. 2002) (applying Ex

Parte Young to allow plaintiffs’ ADA Title II claim for prospective relief against

state officials); Nelson v. Miller, 170 F.3d 641, 646-47 (6th Cir. 1999) (same).

Sovereign immunity can be a formidable obstacle to the recovery of damages, but

in this case Plaintiffs seek only prospective relief. Accordingly, if the court is

persuaded that MDE itself has sovereign immunity, it should permit an amendment

to the Complaint to name an MDE state official as defendant rather than dismiss

Plaintiffs’ otherwise valid ADA claim on a pleading technicality.

Plaintiffs Have Set Forth Sufficient Facts to Satisfy the Pleading IV.

Standards of Twombly and Iqbal.

A. IDEA Claims Are Properly Pled.

Plaintiffs’ allegations have sufficiently placed defendants on “fair notice of

what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). When deciding a motion to dismiss, the court

must “assume the veracity of [the plaintiff’s] well-pleaded factual allegations and

determine whether the plaintiff is entitled to legal relief as a matter of law.”

McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Iqbal, 556

U.S. at 679). A well-pleaded complaint will suffice where “factual allegations [are]

9 Under Michigan law, the state superintendent is the principal executive officer of

MDE. Mich. Comp. Laws § 16.405.


52

enough to raise a right to relief above the speculative level” even where “recovery

is very remote and unlikely” or “that actual proof of those facts is improbable.”

Twombly, 550 U.S. at 556. The factual allegations, when assumed as true, must

merely “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). While “legal conclusions” are “not entitled to the

assumption of truth,” facial plausibility is established where the pled facts “allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. This is necessarily a “context-

specific task that requires the reviewing court to draw on its judicial experience

and common sense,” id. at 679, and draw all reasonable inferences in the plaintiff’s

favor, Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). Such

interferences can arise from “the cumulative effect of the factual allegations,”

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011), including the

sheer number of individual incidents alleged. See e.g., Modd v. Cty. of Ottawa,

2010 WL 5860425, at *7 (W.D. Mich. Aug. 4, 2010) (Ex. 6) (holding that plaintiff

plausibly alleged a policy and practice where 12 similar incidents were reported).

MDE and GISD’s assertion that the Complaint “fails to meet the Iqbal

pleading standard” as it merely contains “conclusory allegations that fail to specify

individual acts of each defendant,” (MDE Br. at 44); (GISD Br. at 24) is mistaken.

Plaintiffs specifically assert that MDE: failed to provide necessary resources


53

(Compl. at ¶¶4, 16, 365); failed to ensure its public schools complied with IDEA,

as required of Defendant by the statute (Compl. at ¶¶35, 42, 50, 381); failed to

monitor and enforce child-find procedures, as required of Defendant by the IDEA

(Compl. at ¶¶41, 350); failed to correct FCS and GISD’s ongoing pattern of failing

to provide procedural safeguards nor provided the expertise and resources required

for FCS / GISD to do so themselves (Compl. at ¶ 381); and failed to ensure

districts provide a FAPE for Plaintiffs and all similarly situated students with

disabilities (Compl. at ¶388). The Complaint’s detailed allegations specific to each

Plaintiff, moreover, illustrate how Defendants’ failures play out on a day-to-day,

student-by-student basis.

Likewise, the Plaintiffs specifically assert that GSID failed to address

sensory and behavioral needs of students in GISD-run schools (¶ 129); failed to

provide special education services and evaluation for students with disabilities

even when frequently prompted by concerned parents; (¶¶ 278, 328, 333, 334,

370); failed to apprise parents of contemplated behavior controlling techniques nor

sought their permission (¶130); failed to assess the extent of lead exposure when

conducting reevaluations (¶134); failed to screen and issue timely referrals

pursuant to IDEA’s child-find requirements (¶364); failed to provide procedural

safeguards for students with disabilities (¶381); is responsible for a pattern of

unduly harsh disciplinary measures including physical restraints and seclusion


54

techniques in violation of IDEA (¶381); failure to provide students with disabilities

the same variety of programs and services offered to non-disabled students (¶384);

and failed to provide a FAPE Plaintiffs and similarly situated students with

disabilities. (¶394).

These detailed claims are more than naked, unadorned, “defendant-

unlawfully-harmed-me” accusations, nor are they a “formulaic recitation of the

elements of a cause of action.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555); 20 U.S.C. §§ 1412(a), 1414(a)-(e). Instead, they describe the specific ways in

which Defendants have failed to comply with the IDEA, and they must be read

together with the specific experiences of each named Plaintiff. As in other

properly-pled IDEA cases, “these claims are not merely challenges to the specific

alleged incidents involving the plaintiffs, but are challenges to blanket policies by

all of the defendants that created the context in which the plaintiffs were subjected

to numerous incidents of restraint and isolation that allegedly could [have] been

avoided.” N.S. v. Tenn. Dep’t of Educ., No. 3:16-cv-0610, 2016 U.S. Dist. LEXIS

91589 at *40 (M.D. Tenn. July, 14, 2016). Plaintiffs here, like in N.S., have alleged

that the MDE has failed to take any action to remediate the ongoing practices

within the state that are in express violation of IDEA. Thus, Plaintiffs “have put

forth enough of a foundation in the Complaint that they should have the

opportunity to further develop the record and proceed with these causes of action.”


55

Id. at *39.

There is no Sixth Circuit precedent, and Defendant MDE cites none, that

require Plaintiffs to demonstrate the systemic violations are statewide. Plaintiffs do

not have to show that there was a statewide failure to provide disabled students

access to programs and services because MDE’s specific legal obligation as an

SEA is to ensure that each local school district provides appropriate educational

services to students with disabilities. See 20 U.S.C. § 1412(a)(11)(A). The only

case MDE cites to support its position is Doe v. Arizona Dep’t of Educ., 111 F.3d

678 (9th Cir. 1997), which is inapposite. There, the court determined that the

plaintiffs could not establish a systemic failure to overcome exhaustion where the

Department did not, and had no reason to know, that special education juveniles

requiring services were temporarily housed in a jail typically reserved for adults.

Id. at 680. Upon discovery of the housing situation, by the commencement of the

suit, the Department began to address the needs immediately. Id. While the court

noted that the juveniles were held in one jail, it did not explicitly or implicitly

address whether a statewide violation must be alleged in order to demonstrate a

systemic violation. Id. at 682. Regardless, Plaintiffs here have alleged injuries

occurring in multiple schools and facilities, all of which Defendants are aware

require special education services, not merely one facility as in Doe.

At least one court in this circuit has explicitly rejected Defendant MDE’s


56

proposition. N.S., 2016 U.S. Dist. LEXIS 91589 at *35-36. That court, following

the Second Circuit, determined that alleging local-level practices is sufficient to

overcome a motion to dismiss because of “the danger of inconsistent findings and

the uncertainty that the administrative process is equipped to handle system-wide

adjudications.” Id. at *35 (citing J.S. v. Attica Cent. Sch., 386 F.3d 107, 114-15

(2d Cir. 2004)).

As Plaintiffs have asserted specific, factual allegations that least raise a

plausible inference of Defendants’ liability, the motion to dismiss should be

denied.

B. Title II ADA and Section 504 Claims Are Properly Pled.

In opposition to Plaintiffs’ Title II and Section 504 claims, Defendants

attempt to insert an animus requirement into the statutes that does not exist. MDE

Br. at 44-45. That is not the standard in the Sixth Circuit: The element of

discriminatory intent can be established by “bad faith or gross misjudgment.”

Campbell v. Bd. Of Educ. of the Centerline Sch. Dist., 58 F. App’x 162, 167 (6th

Cir. 2003) (emphasis added) (Ex. 7); N.S., 2016 U.S. Dist. LEXIS 91589 at *38;

W.H. v. Tenn. Dep’t of Educ., No. 3:15-1014, 2016 U.S. Dist. LEXIS 7206 at *25

(M.D. Tenn. Jan. 20, 2016) (“The element of discriminatory intent, as laid out by

the Sixth Circuit, does not require malice [], or a subjective intent to harm students

with disabilities, but only a gross misjudgment that has a discriminatory effect”). It


57

is indeed MDE’s gross misjudgment in oversight and allocation of necessary

resources that is directly at issue at this case. (Compl. at ¶¶ 4, 16, 35, 42, 50, 350,

365, 381, 388). “Whether such misjudgment has occurred is a question that should

be left to the trier of fact to determine.” W.H., 2016 U.S. Dist. LEXIS 7206 at *25;

see also N.S., 2016 U.S. Dist. LEXIS 91589 at *40 (“As to whether any such

misconduct was carried out with deliberate indifference or gross misjudgment, this

is, again, clearly a factual question that requires further development of the record.

The Complaint, however, raises sufficient allegations to proceed.”).

Plaintiffs have also sufficiently pled a series of discriminatory effects as a

result of MDE’s gross misjudgment. Plaintiffs have alleged that they are not

entitled to the same variety of programs made available to nondisabled children,

(Compl. at ¶¶ 108, 110, 112, 123, 125-26, 184, 209, 259, 261, 301, 384, 387, 391);

that lack of disability identification causes repeatedly unnecessary segregations and

seclusions from the general education environment, (Compl. at ¶¶ 108-10, 144,

148-49, 151, 177, 184, 209, 243, 273, 290, 301-02); and that children with

disabilities are repeatedly sent home and/or suspended without the proper

documentation that is required when suspending or sending home Plaintiffs’

nondisabled peers. (Compl. at ¶¶ 110, 143, 254).

As Plaintiffs have alleged discriminatory intent and discriminatory effect,

Plaintiffs have earned the right to “further develop the record and proceed with


58

these causes of action.” N.S., 2016 U.S. Dist. LEXIS 91589 at *39. Therefore,

Defendants’ motion to dismiss should be denied.

Plaintiffs’ State-Law Claim Is Not for Educational Malpractice. V.

Defendant GISD mischaracterizes Plaintiffs’ state-law claim as “educational

malpractice,” citing a doctrine that bars state-law negligence claims “in which a

public school is alleged to have failed to adequately instruct a student in basic

academic skills.” Page v. Klein Tools, Inc., 610 N.W. 2d 900, 903 (Mich. 2000);

see GISD Br. at 25. GISD stretches that definition in an attempt to evade its

responsibility under Michigan law to coordinate and oversee special education. See

Mich. Comp. Laws § 380.1711(1)(h).

Contrary to GISD’s argument, Plaintiffs do not bring a separate cause of

action based on negligence. Rather, Plaintiffs allege in Count IV of their

Complaint that FCS and GISD are violating the state-law requirements that they

provide Plaintiffs with special education programs and services designed to

develop their maximum potential. See Mich. Comp. Laws §§ 380.1711, 380.1751.

These are not tort claims “alleging negligent instruction,” Page, 610 N.W. 2d at

906; they seek declaratory and injunctive relief requiring compliance with specific

duties assigned by statute.

Woolcott v. State Bd. of Educ., 351 N.W.2d 601 (Mich. App. 1984), is

dispositive. There, the plaintiff was a hearing-impaired child who was denied the


59

services of an interpreter in her general education classes. She sued under Mich.

Comp. Laws § 380.1701, et seq., alleging that she was being deprived of her right

under that statute to an appropriate education to maximize her potential as a

student with disabilities. The court, recognizing that the state statute provides that

right, and indeed goes further than federal law, held the student had a cause of

action for declaratory and injunctive relief to enforce Mich. Comp. Laws §

380.1701, et seq. The same is true here.

The cases GISD cites, by contrast, were all lawsuits for money damages.

But Woolcott itself distinguishes between damages lawsuits, which cannot be

brought for violations of Mich. Comp. Laws § 380.1701, et seq., and lawsuits

seeking declaratory and injunctive relief to enforce Mich. Comp. Laws § 380.1701

et seq., which can. Because in the instant action Plaintiffs seek only declaratory

and injunctive relief, Plaintiffs’ state-law claim survives.


60

CONCLUSION

For the reasons set forth above, MDE and FCS’s motions to dismiss and

GISD’s motion for judgment on the pleadings should be denied.10

Respectfully submitted,

By: /s/ Daniel S. Korobkin








(313) 578-6800 (212) 819-8200





[email protected]

David G. Sciarra

Gregory G. Little

Jessica A. Levin




(973) 624-1815

[email protected]

[email protected]

[email protected]


10

In the event that this Court determines the Motion should be granted, Plaintiffs

request leave to amend the Complaint.


61

CERTIFICATE OF SERVICE

I hereby certify that on January 13, 2017, I electronically filed the above document

with the Clerk of the Court using the ECF System, which will provide electronic

copies to counsel of record.

/s/ Daniel S. Korobkin



2966 Woodward Ave.

Detroit, MI 48201

(313) 578-6800

[email protected]


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